Bombay High Court
Sachin Vitthal Borhade vs The State Of Maharashtra on 11 June, 2013
Author: P.D Kode
Bench: V.K. Tahilramani, P.D. Kode
1 appeal 264.09.odt
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.264 OF 2009
1. Sachin Vitthal Borhade
Age 25 years, Occ. Agri & Driver
2. Smt. Suman Vitthal Borhade
Age 55 yrs, Occ. Household
Both R/o. Jaulke Khurd, Tal. Khed,
Dist. Pune. ig ..Appellants
(presently in lodged at Yerwada
Central Prison, Pune) [Ori. Accused
Nos.1 & 2]
Vs.
The State of Maharashtra ..Respondent
....
Mr. D.G. Khamkar, Learned Advocate for the Appellant.
Mrs. M.M. Deshmukh, Learned APP for the State
....
CORAM : SMT. V.K. TAHILRAMANI &
SHRI. P.D. KODE, JJ.
JUDGMENT RESERVED ON : MARCH 22, 2013.
JUDGMENT PRONOUNCED ON: JUNE 11, 2013.
JUDGMENT [PER KODE P.D., J.] :-
The appellants assail the judgment and order dated 18.12.2007 delivered by the learned Addl. Sessions Judge, Pune in ::: Downloaded on - 27/08/2013 20:44:55 :::
2 appeal 264.09.odt Sessions Case No.452 of 2005, convicting and sentencing them or in furtherance of their common intention committing murder of Sarika, wife of appellant No.1 and daughter-in-law of appellant No.2 and so also for subjecting her to cruelty for not meeting their unlawful demand of golden ornaments. Both of them were sentenced to suffer, imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of fine, to suffer further rigorous imprisonment for two months for committing the offence under section 302 r.w. 34 of Indian Penal Code and rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default of payment of fine, to suffer further rigorous imprisonment for one month each for the offence under Section 498-A r.w. 34 of Indian Penal Code. The substantive sentences imposed were ordered to run concurrently.
2. According to the prosecution, Sarika, the daughter of PW-1 Ashabai and one Narayan Arude, resident of Tinewadi, Tal.
Khed, Dist. Pune married appellant No.1 on 14 th May, 2004. The appellant No.1 was working as a Labourer and as well as driver for Tractor. After marriage, Sarika resided at village Jaulke alongwith in-laws and appellant No.1.
2.1 After 2-3 months happy married life, the parents of Sarika ::: Downloaded on - 27/08/2013 20:44:55 ::: 3 appeal 264.09.odt called couple at their house for Diwali festival. Thereon, appellants told Sarika to ask them to give gold chain/ring of at least 1&1/2 Tola, otherwise they would not be sent for festival. Sarika told her that parents cannot afford to give such ornament as they had already incurred debt for her marriage. Both the appellants started abusing and beating her. They also suspected about paternity of a child in her womb.
2.2 Shilpa and Samir, younger sister and brother of Sarika, came at her place for calling couple for Diwali festival, returned after such a demand of ornament was reiterated by the appellants.
As told by appellant No.2, Sarika alone went to house of parents on the day of 'Bhavu Beej". She apprised them message of appellant No.2 that only after receipt of ornament, she would send both at their house. Sarika also apprised that the appellants were abusing and assaulting her upon suspicion of the paternity of the child in her womb. On the next day, Sarika return to her matrimonial home. Even thereafter the appellants continued to abuse and beat her upon suspicion of paternity of child.
2.3 Sarika apprised such happenings to her parents by giving a call to her cousin Anil at Tinewadi by using phone at the house of her cousin father-in-law, i.e., DW1 Dattatray Borade. As per the invitation received from her father, Sarika and appellant No.1 had ::: Downloaded on - 27/08/2013 20:44:55 ::: 4 appeal 264.09.odt been for lunch to house of her father. Her parents then planned to purchase clothes for appellant No.1. However, in the fury of not giving gold ornament, he returned alongwith Sarika. Since then, Sarika was blamed for not giving gold ornaments as well as upon suspicion regarding the father of the child in her womb.
2.4 According to the prosecution on the eventful Monday of 21st February, 2005, her in-laws had been to the field while appellant No.1 at about 1.30 p.m. had been to Khed. At about 4.30 p.m., Mukund Borade, a boy from neighbourhood came and asked for Misri (dental powder). As told by Sarika he went in the house for taking Misri. The appellant No.1 returned as Mukund was about to leave.
2.5 Appellant No.1 expressing suspicion questioned Sarika about visit of Mukund. Appellant No.1 abused her and quarrelled till late-night hours. In mid-night at about 1.30 hrs., he started beating Sarika with fist blows. After hearing noise, appellant No.2 questioned them for quarrelling. Appellant No.1 apprised her about visit of Mukund in his absence. He expressed suspicion about character of Sarika and told that he was not father of child in her womb. Appellant No.2 then told appellant No.1 to finish her and gave filthy abuses.
::: Downloaded on - 27/08/2013 20:44:56 :::5 appeal 264.09.odt 2.6 The appellants commenced beating her. They caught her while attempting to go out of kitchen. Appellant No.1 took kerosene can and poured kerosene at her both shoulder. Appellant No.2 threw ignited match stick upon her and after closing stood outside kitchen door. As saree catched fire, Sarika felt burnings at her person and she started shouting. As she tried to come out of he kitchen, appellant No.1 pushed her. Sarika took the quilt at bed and extinguished fire. Her cousin mother-in-law Changunbabai and neighbour arrived at spot. Changunabai, sister-in-law Surekha, appellants and her father-in-law by jeep took her to YCM Hospital and thereafter to Sasoon Hospital.
2.7 According to the prosecution, PW4 PSI Yadav, after receipt of information from YCM Hospital that Sarika was admitted as a burn case, after giving first aid is referred to Sasoon Hospital, went to Sasoon Hospital. PW4 asked Doctor on duty viz. PW3 Dr. Vankatte whether the said patient admitted in burn-ward on cot No.15 was conscious and able to give statement. PW3 after examination, opined that patient was conscious and able to give statement. Accordingly he gave endorsement Exh.24. PW4 thereafter recorded first information report-cum-dying declaration (Exh.30) of Sarika narrating above stated facts. PW4 registered Crime No.28 of 2005 for offence under sections 307, 498-A r.w. 34 of I.P.C. against the appellants upon said first information ::: Downloaded on - 27/08/2013 20:44:56 ::: 6 appeal 264.09.odt report. He issued a letter Exh.19 to Executive Magistrate PW2 Smt. Shobha Deshmukh for recording Dying Declaration of the victim.
2.8 According to the prosecution PW2 Smt. Shobha Deshmukh, Executive Magistrate immediately after receipt of letter Exh.19, went to Sasoon Hospital and met Doctor. PW2 thereafter inquired about the ward in which Sarika was admitted. PW3 showed her Sarika. PW3 examined and gave certificate that she was in a position to make valid statement. PW2 thereafter asked certain questions to ascertain whether Sarika was in a position to give statement and in a position to understand and thereafter she recorded dying declaration of Sarika Exh.20. PW3 again examined Sarika and gave certificate/endorsement below the dying declaration given by Sarika. PW2 obtained her left leg thumb mark on the said statement after she admitted that said statement read over to her was correctly recorded.
2.9 PW4 visited spot of offence and recorded situation prevailing and seized 10 articles found at the spot viz.: (i) Ten liters Can containing half litre kerosene; (ii) Match box; (iii) One iron stove (iv) One Heater of Kinson-ISI; (v) One copper-pittal stove in closed condition; (vi) Half burnt match sticks; (vii) three green colour bangle pieces (viii) Quilt and different colour clothes having ::: Downloaded on - 27/08/2013 20:44:56 ::: 7 appeal 264.09.odt smell of burning (ix) one flower design of quilt having sense of burning; & (x) Pieces of burnt Saree of red colour smelling kerosene found in the kitchen on marble:
2.10 PW4 recorded statements of the witnesses and seized the clothes of the victim. PW4 arrested both the appellants on 25 th February and seized their clothes under panchanama Exh.15.
After death of Sarika at Sasoon Hospital on 25 th February at 21.30 hours, crime registered was altered for offence under sections 302 and 498-A r.w.34 of I.P.C. It appears that autopsy on the corpse of Sarika was performed at Sasoon Hospital by Dr.Mohale. The Postmortem Notes of said autopsy prepared by him gives the cause of death as "Septic shock due to burns" (associated pregnancy).
PW4 sent mudemaal articles to C.A. and at the conclusion of the investigation, he chargesheeted the appellants for offence under Sections 302 and 498-A r.w.34 of I.P.C.
3. The appellants pleaded not guilty to the charge (Exh.4) for such offences framed against him by the Court of Sessions at Pune after the case was committed to said Court by the Committal Court. The prosecution examined in all 4 witnesses referred hereinabove in support of case of the prosecution. The defence of the appellants was that of total denial and false implication.
::: Downloaded on - 27/08/2013 20:44:56 :::8 appeal 264.09.odt
4. The appellant No.1 vide written statement filed at Exh.43 claimed that on the date of incident due to headache and gas outliving, Sarika ignited stove for preparing Tea. As stove was old and not in proper condition, extra kerosene oozed out of the burner and stove flared-up, Sarika caught fire. The appellant No.1 tried to extinguish the fire by putting quilt on her person. In the process, he sustained burns at his hands. Both of them shouted. The appellant No.2, father-in-law, cousin father-in-law and cousin mother-in-law brought them in dispensary at Khed. As the condition of the Sarika was critical, she was brought to YCM Hospital and thereafter at Sasoon Hospital. Even at said place proper treatment was not given and they were thinking to shift her at private hospital at Bosari. Within then she expired. Though his in-laws came in the hospital at 6.00 to 6.30 a.m., they took somersault by 12.00 to 12.30 noon after arrival of cousin father-in-law and after connivance they decided to file a false case, after demanding for expenses incurred in the marriage. As he was innocent, he kept quite. Hence they are harassed by filing a false case. He was having all the love for his wife.
4.1. The appellant No.2 vide written statement Exh.41 claimed that sometimes Sarika suffering from headache used to have a Tea. She claimed that on the day of incident also she was suffering from headache. She went for sleep alongwith her ::: Downloaded on - 27/08/2013 20:44:56 ::: 9 appeal 264.09.odt husband. However, as she was fed-up due to headache she ignited stove for preparing a Tea. She sustained burn injuries due to ablazing of stove. The appellant No.1 sustained burn injuries when he went for extinguishing fire to save her. They brought both of them to dispensary at Khed. Since the condition of Sarika was critical she was taken to YCM Hospital and thereafter to Sasoon Hospital. Her parents came in the morning, they told them true happenings. However, after arrival of many relatives by afternoon, father of Sarika demanded money on count of having incurred loan for the marriage. He demanded entire amount by telling that otherwise he will file a false case of themselves having killed Sarika and accordingly they have filed false case. The appellants examined uncle of appellant No.1 namely Dattatray Borade in respect of defence.
5. The trial Court after assessment of the evidence came to the conclusion that the prosecution has proved that Sarika met homicidal death and the appellants in furtherance of their common intention subjected her to cruelty by suspecting her character and for non fulfilling demand of golden articles and committed her murder. In consonance with such finding arrived, the trial Court convicted the appellants and sentenced them as narrated earlier.
6. Mr. Khamkar, the learned counsel for the appellants by ::: Downloaded on - 27/08/2013 20:44:57 ::: 10 appeal 264.09.odt meticulously taking us through the evidence surfaced at the trial, canvassed that the trial Court has mainly rested the conviction upon the purported Dying Declarations of the deceased allegedly, recorded by PW4 or PW2 and made to PW1. By pointing out certain features from the evidence, it was canvassed that the prosecution evidence of victim having made such dying declaration to PW1 does not inspire confidence as same has been made to the interested person and/or admittedly when the victim was surrounded by the relatives in the hospital. It was urged that the prosecution evidence regarding dying declaration recorded by PW4 and PW2 also does not inspire confidence due to variance existed in it and/or interpolition made regarding the timings and/or lacking of cogent evidence that the same was made by victim. It was urged that none of the said dying declarations can be said to be true and voluntary dying declarations made by the deceased as required by the law. It was urged that the trial Court manifestly erred in appreciating the evidence of prosecution witnesses and coming to the erroneous contrary findings and convicting and sentencing the appellants. It was canvassed that the trial Court committed serious error in not appreciating the defence of the appellants, which was probablised by burn injury to hands of appellant No.1. It was urged that the order of conviction and sentence recorded by the trial Court is not legally sustainable and same deserves to be quashed and set aside and the appellants deserves to be acquitted or atleast ::: Downloaded on - 27/08/2013 20:44:57 ::: 11 appeal 264.09.odt deserves to be given benefit of the doubt as the prosecution evidence also echos the possibility of the appellants being not guilty. The learned counsel also placed reliance upon the decision in case of Shaikh Bakshn & Ors. Vs. State of Maharashtra - 2007 (2) Bom.C.R.(Cri.) 332 in support of his submission canvassed and particularly that of Dying Declarations Exh.30 and Exh.20 deserves to be discarded, in view of PW4 and PW2 of having admitted of not mentioning in the Dying Declarations that after recording it, it was read over to the victim and victim having admitted the same being correct.
7. Mrs. M.M. Deshmukh, the learned APP on the contrary supported the judgment delivered by the trial Court. She contended that the trial Court has given weighty reasons based upon the evidence on record for relying upon and acting upon true and voluntary dying declarations of the deceased proved by the prosecution. It was urged that no case is made out for interfering with the reasoned judgment given by the trial Court and as such the appeal devoid of merit be dismissed.
8. Thoughtful consideration were given by us to the submissions advanced and the record of the case was carefully considered to ascertain merit of the submissions canvassed.
::: Downloaded on - 27/08/2013 20:44:57 :::12 appeal 264.09.odt
9. At the first blush, it can be said that even the appellants have not disputed of Sarika having met the death due to burn injuries sustained by her and the controversy is made whether she was burned by the appellants as claimed by the prosecution or she had sustained burn injuries accidentally. In view of the appellants having not disputed the death of Sarika having occurred due to burn injuries sustained by her in the night of 21 st February, and the controversy is made that she had not sustained said injuries due to the acts on the part of the appellants, but due to the accident occurred due to ablazing of a stove while preparing the tea and having due regard to the nature of the evidence adduced by the prosecution, we find it appropriate to firstly consider the evidence adduced pertaining to dying declarations relied.
10. In the said process, we find it appropriate to firstly consider the evidence of PW3, apparently as per the prosecution case, he was party to the event of recording of both dying declarations of the deceased, i.e. Exh.30 by PW4 and Exh.20 by PW2 and having examined the victim on both occasions and given the certificates/endorsement to both the said witnesses, who claimed of recording her dying declarations.
11. The reference to the evidence of PW3 reveals that while working as a Medical Officer at Sasoon Hospital, Pune on 23 rd ::: Downloaded on - 27/08/2013 20:44:57 ::: 13 appeal 264.09.odt February, 2005, he was present in burn ward and Sarika was admitted as a burn case. It further reveals that after police from Rajgurunagar (Khed) Police Station approached him for opinion whether Sarika was in a position to give statement. He accompanied said police and examined Sarika. It reveals that Sarika was then in a position to speak and was conscious and well oriented. It reveals that PW3 accordingly told to the police officer.
The police officer thereafter recorded her statement in presence of PW3 and thereafter PW3 effected an endorsement Exh.24 upon the statement to the effect "23/2/2005
- 14.10 to 14.45 p.m. Mrs. Sarika Borade, P-108/r B.P. 100/70 CNS- conscious oriented in Time, place and person.
Patient is fit to give valid statement at present."
The evidence of PW3 to the extent of making endorsement is found duly corroborated by endorsement Exh.24 reproduced hereinabove.
11.1 PW3 further deposed that on the same day, after recording said statement, Executive Magistrate came to hospital to record the statement of Sarika and PW3 examined her and put his endorsement to that effect at the beginning of her statement Exh.20. He deposed that he was present throughout recording of ::: Downloaded on - 27/08/2013 20:44:58 ::: 14 appeal 264.09.odt her statement by the Executive Magistrate and after completion of the statement again he put his signature on Exh.20 at the end. The reference to Exh.20 reveals that first endorsement is to the effect:
""23/2/2005
- 4 p.m. - Mrs. Sarika Borade, P-108/r B.P. 100/70 CNS- conscious oriented in Time, place and person.
Patient is fit to give valid statement at present."
The reference to Exh.20 reveals that endorsement at the end is to the effect:
"Medical Certificate 23/2/2005 Patient is conscious, oriented in Time, place and person. Patient is fit to give valid statement at present."
Dt.23/2/2005 Time 4.55 p.m. 11.2 In the context of the evidence of PW3, reference to the evidence of PW4 PSI Yadav and PW2 Smt. Shobha reveals that such evidence of PW3 is well corroborated by their evidence of occurrng of such events i.e. both of them at different time having approached Sasoon Hospital met PW3 and PW 3 after examination having given such certificates for recording of statement/dying declaration by each of them.
11.3 Upon close scrutiny of evidence of PW3 in light of the answers elicited during the cross-examination, we do not find his ::: Downloaded on - 27/08/2013 20:44:58 ::: 15 appeal 264.09.odt evidence is shaken in any manner. Mr. Khamkar vehemently contended that the evidence of PW3 does not reveal that he has deposed the time at which PW4 and PW2 had approached him on the relevant day. It was urged that the evidence of PW3 is vague regarding the occurrence of the event of recording dying declarations of Sarika as claimed by each of them. It was also contended that PW3 has not produced any medical papers corroborating his claim that PW4 and PW2 had approached him in burnt ward on the relevant day as claimed by him.
11.4 We are unable to find any force in the said submission as the evidence of PW3 reveals that he was searchingly cross-
examined on behalf of the appellants and during said cross-
examination defence has brought on record that the police had recorded statement at about 2.00 p.m. and recording of statement by the police had taken about 45 minutes. Similarly, it was brought on record that PW2 Executive Magistrate had been to PW3 at about 4.00 p.m. We are also unable to find any substance in the submission canvassed about non-production of the case papers of Sarika for corroborating the claim staked by PW3. As already pointed by us his evidence is corroborated by the relevant endorsement appearing upon dying declaration Exh.30 and 20 respectively recorded by PW4 and PW2. Hence, we do not find any substance in the said submission canvased, which is apparently ::: Downloaded on - 27/08/2013 20:44:58 ::: 16 appeal 264.09.odt based upon erroneous belief of there existing necessity of production of such case papers. Further more we find that at the trial the defence had not established in any manner that the said case papers are not containing entries of visits of the said witnesses.
11.5 In the same context by making reference to the timing given in Exh.24 to the effect 14.10 - 14.45 p.m., the learned counsel submitted that the digit '1' has been added earlier to the digit '4' in the said endorsement for making a show that dying declaration was recorded in between 14.10 to 14.145 p.m. instead of the original endorsement contained therein of same being recorded in between 4.10 - 4.45 p.m. We do not find any force in the said submission, which apparently appears to have been levelled on the basis of ink for digit '1' being some what darker than the ink appearing in other part of the endorsement. Since there can be several reasons for the same and no further support to the submission canvassed is found in the deposition of PW3 or even otherwise, we are unable to give any undue importance to the said aspect. Further more we find that the author of said endorsement, i.e., PW3 was not at all questioned during the cross-examination regarding the said aspect muchless even no suggestion to such effect was given to him. After taking into consideration that PW4 was the first person to approach Sarika for regarding her statement and PW2 has admittedly approached ::: Downloaded on - 27/08/2013 20:44:58 ::: 17 appeal 264.09.odt lateron, we fail to appreciate that any such interpolition as alleged could have been made by the police or somebody else for any meaningfull purpose. Thus apparently a mountain has been tried to be made out of a mole on the basis of difference in the ink occurring in said endorsement.
11.6 As a net result of the aforesaid discussion, we find that upon scrutiny of the evidence of PW3, the same inspiring confidence for accepting and relying upon it.
ig By the said evidence, prosecution has duly proved the fact that Sarika was admitted to Sasoon Hospital, PW4 approached PW3 and after himself certifying that she was fit to make statement, he had recorded her statement.
Similarly, the prosecution has also established PW2 having approached PW3 and in similar manner after PW3 certifying that Sarika was in a position to make statement, she had recorded her dying declaration. We are of such opinion as we do not find any embellishment in the evidence of PW3 for not accepting such claim staked by him. Needless to add PW3 being the independent person, had hardly any reason to stake such false claims.
12. Having considered evidence of PW3, now taking up the evidence of PW4, reference to his deposition reveal the manner in which he had been to Sasoon Hospital after receipt of the information from YCM Hospital regarding Sarika being sent to ::: Downloaded on - 27/08/2013 20:44:58 ::: 18 appeal 264.09.odt Sasoon Hospital after giving first aid treatment to her. It reveals at the said hospital after obtaining information from PW3, he had recorded statement-cum-dying declaration Exh.30 of Sarika. It also reveals that about requisition given by him to PW2 for recording dying declaration. The other part of his evidence is confined to the investigation made by him. Since said evidence of PW4 is well in consonance with the prosecution case narrated hereinabove and as we do not find any infirmity in said evidence, we do not propose to reproduce the same.
12.1 In the context of the evidence of PW4, Mr.Khamkhar the learned defence counsel by drawing our attention to the length at which Exh.30 runs urged that the said length itself denotes that the same was not true and voluntary declaration made by Sarika. It was urged that statement running to such an extent indicates fabrication. We are unable to accept the said criticism as considering the evidence of PW4 as a whole, it is clear that he had recorded Exh.30 as a primarily as a statement of victim admitted in hospital and not in stricto-sense for recording her dying declaration. The same is evident from the fact of PW4 having given requisition of which copy is Exh.19 to PW2 for recording dying declaration. Further more the reference to the admitted document, i.e., P.M.Notes Exh.20 reveals that Sarika had sustained 63% burns. The same does not reveals that any major injuries ::: Downloaded on - 27/08/2013 20:44:59 ::: 19 appeal 264.09.odt impairing vocal organs were caused. Apart from the evidence of PW3, said factor militates against the defence submission that Sarika could not have been given such a lengthy statement. It can be further added that nothing had been brought to our notice that then condition of Sarika was such a precarious that she could not have made such a lengthy statement. Though it is true that said statement Exh.30 runs to the extent as pointed out by the learned defence counsel still the same being recorded as her statement and recording being not confined to the aspect of dying declaration, the submission cannot be accepted that the same is suggestive of same being fabricated statement.
12.2 By laying finger upon admission given by PW4 that there were other patients in the ward, some persons with the relatives of the deceased were also present, the learned defence counsel urged that same is suggestive of Sarika being tutored before her statement was recorded. We do not find any force in the submission for simple reason as the incident in question had occurred at about 1.30 a.m. in midnight and thus considering the passage of time thereafter, it would not have been unlikely for the relatives of the patient to be in the said hospital. However, merely on the basis of presence of the relatives of the deceased at the hospital, the submission as canvassed cannot be accepted. Such a conclusion is obvious after taking into consideration the evidence of PW1, which ::: Downloaded on - 27/08/2013 20:44:59 ::: 20 appeal 264.09.odt shows consistency regarding the harassment and cruelty caused to Sarika. The said aspects militates against such a matter being told by deceased due to tutoring and on the contrary being fully suggestive of declaration made by the deceased is true and voluntary. The careful scrutiny of the evidence of PW4 does not afford the reason to believe that the statement Exh.30 recorded by him was out come of tutoring.
12.3 In the same context, the learned counsel by drawing our attention to the admission given by PW4 that he has not put an endorsement that statement was read over to the victim and she admitted the same as correctly recorded and further admission that he has not put such an endorsement as there is no such legal requirement, urged that the same also reveals that Exh.30 is not a statement/dying declaration of the deceased recorded in a manner as claimed by PW4. We do not find any merit in the said submission canvassed. We are of such a view as considering the said admission as a whole, it is clear that the same was regarding putting of endorsement upon statement recorded by PW4 and same was not regarding the fact that occurring of such event, i.e. PW4 reading the statement to the victim and the deceased admitting the same to be correct and thereafter obtaining thumb impression of her left leg. The reference to Exh.30 reveals existence of such endorsement, wherein it is stated that said statement was read over ::: Downloaded on - 27/08/2013 20:44:59 ::: 21 appeal 264.09.odt to her and the same was written as per her say. Having regard to the said facet infact such question should not have been permitted in the cross-examination, i.e., question relating to written record. At any rate, the substantive evidence of PW4 of having read over statement to the victim and herself admitting the same to be correct as per her say having remained unshattered and same being corroborated by such endorsement found in Exh.30, the ingenious submission canvassed on the basis of admission secured contrary to the record will required to be ignored due to the same being devoid of merit.
12.4 In context of evidence of PW4, the learned counsel for the appellants canvassed that as his evidence reveals that he had recorded Exh.30 and registered the crime he would be required to be treated on the par of as an interested witness and as such he should not have investigated the case. We fail to find any substance in said submission canvassed for the simple reason as apparently there exists no bar for a police officer registering a crime to investigate the said case. We are of such view as due to the said reason, the police officer cannot be called as an interested person.
We are of such a view as it is settled by plethora of judgments that a person can be said to be an interested witness only in the event of he is likely to derive any advantage from the act committed by him.
By applying said test, the officer of independent agency recording ::: Downloaded on - 27/08/2013 20:44:59 ::: 22 appeal 264.09.odt of FIR cannot be said to be an interested person. Furthermore even assuming that PW4 is a interested witness, still merely because of the said reason, his evidence would not be liable to be discarded as it is settled legal position that though the police officers lying trap are said to be interested witnesses merely for such reasons their evidence is not liable to be rejected and the said facet would only warrant close scrutiny of the evidence of such a police officer, who had laid trap. Even applying the said test and closely scrutinizing the evidence of PW4, we do not find any embellishment in his evidence, hence, we are unable to find any substance in the submission canvassed.
13. Now considering the prosecution evidence pertaining to the dying declaration Exh.20, the reference to evidence of PW2 Executive Magistrate Smt. Shobha reveals that after receipt of requisition letter from PW4 of which carbon copy is at Exh.19, she had been to Sasoon Hospital and recorded dying declaration of Sarika Exh.20. Since we find that she has deposed inconsonance with the prosecution case regarding recording of said dying declaration narrated earlier we do not proposed to reiterate her evidence. With regard to the submission canvassed by the learned defence counsel that though she had claimed to have received original requisition letter of which copy is at Exh.19, she had not produced the said letter at the time of her evidence. It was tried ::: Downloaded on - 27/08/2013 20:44:59 ::: 23 appeal 264.09.odt to canvass that the same denotes concoction is made for suiting the prosecution. We reject the said submission in view of the carbon copy of said letter already being on record and no other circumstance is pointed out rendering the evidence of PW4 or that of PW3 of having receiving such a requisition letter. Upon further perusal of her evidence, we find that PW3 has taken necessary care regarding obtaining opinion of Doctor attending the patient, i.e. PW3. It further reveals that she had also taken care to satisfy herself that the patient was in a position to make statement and was in a position to understand by asking preliminary questions and thereafter she recorded dying declaration. Her evidence discloses that before recording and after recording PW3 had examined the patient and given endorsement at the top of and at the end of the dying declaration recorded by her. We do not find any substance in the submission canvassed that admission given by PW2 that she has not written in the dying declaration the fact of herself having put preliminary questions denotes that PW2 is trying to put up such a story to add colour of her evidence. We are of such a view, as bare glance at Exh.20 reveals recording of six questions which are of preliminary nature indicating the same being sufficient for PW2 to arrive at the satisfaction that victim was in a disposing state of mind. PW2 during her evidence specifically denied the suggestion given that the relatives of the patients were present in the Ward at the time of recording of her statement. Thus even after close ::: Downloaded on - 27/08/2013 20:45:00 ::: 24 appeal 264.09.odt scrutiny of her evidence, we do not find any circumstance brought on record rendering her evidence unreliable or unbelievable. At the cost of repetition, we add that the evidence of PW2 is duly corroborated by the evidence of PW3 and so also to some extent the evidence of PW4. Thus by her evidence prosecution has duly established on record that Exh.20 recorded by her is true and voluntary dying declaration made by victim to her.
14. By making reference to Dying Declaration Exh.20 and Dying Declaration Exh.30, the learned counsel for the appellants canvassed that none of them can be regarded as a true, voluntary and reliable dying declaration made by the deceased as the same reveals conflict in a role played by the appellants. It was canvassed that Exh.20 reveals that kerosene can was brought by appellant No.2 while Exh.30 reveals appellant No.1 had taken the rockel can from the shelf. After close scrutiny of both dying declarations, we are unable to satisfy ourselves that there exist any interse conflict in between the role played by both the appellants in the episode.
We are of such a view as the reference to dying declaration Exh.20 though reveals that the appellant No.2 has initially brought can and further part of it reveals that kerosene from the same was poured by appellant No.1 on the shoulder of victim and thereafter the appellant No.2 has ignited match stick and threw on her person.
The close scrutiny of dying declaration Exh.30 reveals that similar ::: Downloaded on - 27/08/2013 20:45:00 ::: 25 appeal 264.09.odt role is ascribed therein to appellant No.1 and appellant No.2 with exception that the same being silent as to who had initially pick-up the can from the shelf. Thus considering both the dying declaration as a whole, we do not find any substance in the submission canvased of both dying declaration containing interse conflict regarding the role played by the appellants in the episode muchless unresolvable conflict destroying the effect of each of said dying declaration. At the cost of repetition, we add that considering the matters from both the dying declarations, the same is amply clears that both the appellants were acting in furtherance of their common intention to finish the victim by pouring kerosene on her person and set her ablaze. The said dying declarations reveal that in the said process, the kerosene was poured on the of victim by appellant no.1 while victim was set at fire by appellant No.2 by throwing ignited match stick on her person.
15. Now considering the evidence of oral dying declaration made by the victim to her mother, i.e., PW1, the reference to her evidence reveals that she has deposed in consonance with the prosecution case since the marriage of victim with appellant No.1.
As the evidence of PW1 is inconsonance with the prosecution case narrated earlier, we do not proposed to reiterate the said evidence except stating that PW1 has deposed about dispute having arisen after victim and the appellant No.1 were called by them at their ::: Downloaded on - 27/08/2013 20:45:00 ::: 26 appeal 264.09.odt house for Diwali festival and then demand of gold ornaments weighing about 1 & ½ tolas made by the appellants. It reveals such a demand was repeated with the brother and sister of victim, who had been to the house of the appellants for calling them to Diwali festival. It reveals that the victim was alone sent for Diwali festival on the count of non-fulfillment of such ornaments. It reveals that even thereafter appellant No.1 returned alongwith victim when he was called at the house of PW1 and attempt was made by the parents of victim to give him clothes.
ig It reveal that then appellant No.1 having returned accordingly due to themselves having not given the gold ornament. Without detailing the said evidence, it can be said that consistent tale unfolded by PW1 of deceased being harassed since the said demand and so also by expressing the suspicion regarding paternity of child in the womb of Sarika. The evidence of PW1 reveals that on 22.2.2005 after receipt of information of victim being taken to Sasoon Hospital as she was burnt, PW1 alongwith her husband had been to said hospital and then the victim had told her that her husband poured kerosene on her person and her mother-in-law burnt her. After scrutinizing, we do not find that said evidence has been shattered in any manner during the cross-examination.
16. In addition to the evidence in the shape of dying declarations of the victim, i.e., Exh.30, 20 and oral dying ::: Downloaded on - 27/08/2013 20:45:00 ::: 27 appeal 264.09.odt declaration made to PW1, we also find that apart from the consistency regarding the role played by the appellants in the episode as revealed from said dying declarations, the matters therein are also found duly corroborated from other circumstantial evidence adduced by the prosecution in the shape of spot panchanama and inquest panchanama. In the context of inquest panchanama and so also defence evidence led by the appellant, i.e., of DW1, we find that the trial Court has given the cogent reasons in paragraph Nos.16 to 18 for negativing the recitals in the inquest panchanama that due to flaring of flames of stove Sarika had sustained burned and such defence evidence given by DW1. After carefully considering said reasoning, we find that such recital from the inquest panchanama was rightly rejected by the trial court on the count of said panchanama failing to disclose the source of knowledge of the police regarding said recitals. Similarly, we find that during the cross-examination of DW1, learned APP has duly brought on record that fact of Sarika having sustained accidental burn injuries was not narrated by him to the police, when his statement was recorded during the course of investigation immediately on the day of incident. We are unable to find any fault with the reasoning given by the trial Court based upon the evidence on record for negativing the theory of Sarika sustaining accidental burn injuries.
::: Downloaded on - 27/08/2013 20:45:00 :::28 appeal 264.09.odt
17. Now reference to the decision in case of Shaikh Bakshn & Ors. Vs. State of Maharashtra - 2007 (2) Bom.C.R.(Cri.) 332, relied by the learned counsel for the appellants reveals that as pointed the same contains in paragraph No.8, the observations of the Apex Court that "there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and ig explained. The view is clearly unacceptable". However, the said observations cannot be said to be of any assistance in the present case to the appellants in view of factual position regarding said aspects discussed hereinabove.
Further more even the said decision does not reveal that only on the said count the dying declarations in the said case were not accepted. As a matter of fact, the perusal of reasoning given in paragraph No.9 reveals number of infirmities noted by the apex Court in the dying declaration involved in that case and due to the such infirmities it was concluded that the prosecution has not established the case. Such position being not found with the dying declarations involved in present case, the reference made to the said decision is not helpful to the appellants for any meaningful purpose.
18. The learned counsel for the appellants attempted to ::: Downloaded on - 27/08/2013 20:45:01 ::: 29 appeal 264.09.odt canvass that since whole episode had germane from the visit of Mukund Borhade, non-examination of said witness and/or the brother and sister of Sarika viz Samir and Shilpa , who had earlier visited the house of the appellants for calling the couple for Diwali festival and cousin mother-in-law Changunbai who had accompanied the victim while taking to the hospital, the prosecution has suppressed the material evidence and placed one sided story of the parents of deceased before the Court. It was canvassed that the trial Court in the said context also ignored the fact that the appellant No.1 was also burnt during the incident. It was urged that non-examination of the said witnesses has deprived the defence to establish on record that the dying declarations of the deceased are tutored versions and are not true and reliable. It was urged that the fact of appellant No.2 taking the victim to the hospital and himself sustaining burn injuries also militates against the prosecution case of having played role as claimed by the prosecution.
19. It is indeed true that the prosecution has not examined the witnesses as pointed out by the learned defence counsel.
However, wayback in the year 1957 in the decision of the Apex Court in the case of Vadivelu Thevar Vs. The State of Madras reported in AIR 1957 SC 614, wherein Hon'ble Apex Court has observed in paragraph no.11 :-
::: Downloaded on - 27/08/2013 20:45:01 :::30 appeal 264.09.odt "11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." the legislature determined, as long ago as 1872, presumably after the consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized on S.134 quoted above. The Section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evience of the single witness whose testimony has to be either accepted or rejected. If such a testimony is fond by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified ::: Downloaded on - 27/08/2013 20:45:01 ::: 31 appeal 264.09.odt into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
(...emphasised supplied to us)
In light of the said observations, now considering the events for which the said witnesses pointed by learned counsel were party, we find it difficult to accept that the said witnesses can be said to be material witnesses necessary to be examined by the prosecution for proving the incident and consequently the charge against the appellants.
We are of such view as the learned defence counsel was unable to satisfy us as to which part of the prosecution tale remained to be unfolded at the trial would have been unfolded by examination of the said witnesses. Hence, we discard said submission.
19.1 With regard to the submission canvassed regarding appellant No.1 having sustained burn injuries, we find that no efforts were made on part of defence to bring on record the nature of injuries sustained by appellant No.1. We also find that no attempt was made to bring on record the medical certificate of appellant No.1 inspite of fact of PW4 having deposed that he had sent him for medical examination to Rural Hospital Rajgurunagar.
Such a medical certificate would have amply thrown light whether in reality the appellant No.1 had attempted to extinguish the fire ::: Downloaded on - 27/08/2013 20:45:01 ::: 32 appeal 264.09.odt and whether in said process he had received said injuries. The said conduct on part of the defence itself warrants drawing of an adverse inference against the defence as such evidence deliberately is not brought on record as the same would have been adverse to the defence. We are of such a view as the possibility of the appellant No.1 suffering from some minor injuries during the incident cannot be ruled out. Needless to add, the record except bare words of appellant No.1 does not reveal that he had sustained any burn injuries. Resultantly, we do not find any merit in said submission canvassed.
20. Lastly, the learned counsel for the appellant tried to canvass that the incident has arisen out of the sudden quarrel ensued between husband and wife. It was urged that the evidence reveals that both the appellants had acted in a heat of anger during the quarrel occurred. It was urged hence it is difficult to perceive that either of any of them was entertaining any intention to kill Sarika. It was urged that it appears that after the act was committed by them in heat of anger and the situation escaped from their hands and Sarika sustained burn injuries. It was urged that further act on part of appellant No.1 to take Sarika to the hospital is indicative of himself not entertaining any intention to kill her. It was urged hence the offence occurred at the hands of appellants would not transcend beyond the offence under section 304, part-II or part-
::: Downloaded on - 27/08/2013 20:45:01 :::33 appeal 264.09.odt I of I.P.C.
21. After carefully considering the matters contained in the dying declarations, which we find true, reliable and voluntary we are unable to find any force in said submission canvassed. With regard to appellant No.2, we do not find any evidence that she was party to any quarrel. Even with regard to appellant No.1 we do not find that the evidence denotes that the victim was quarrelling with him. As a matter of fact, matters in the said dying declarations in clear terms reveal that after noticing Mukund Borade leaving the house, the appellant No.1 has started quarreling with the deceased and he was quarreling with her throughout the day. It can be further added that said quarrel cannot be said to be a sudden quarrel, as such quarrel, abusing and beating to the deceased was in progress is well borne not only from the matters stated in dying declarations, but also from the evidence of PW1. At the cost of repetition, we add that even taking into consideration the events occurred on said day, it is difficult to perceive that the same denotes that the victim was quarreling. Further more the matters from the dying declarations reveal that after appellant No.2 came at the said place and questioned them regarding reason for quarrel and after appellant No.1 has disclosed about the visit of Mukund and declared that he was not the father of child in the womb of Sarika, appellant No.2 had instigated him to finish the ::: Downloaded on - 27/08/2013 20:45:02 ::: 34 appeal 264.09.odt victim. The evidence reveals that the victim was caught by them, kerosene can was brought and appellant No.1 poured kerosene on the person of victim and appellant No.2 had thrown ignited match stick on the person of victim. The dying declaration Exh.20 in turn reveals that appellant No.2 stood outside the door of kitchen by closing it in order to prevent the deceased coming out of he said room. It reveals that the fire was extinguished by the victim by using quilt and not by appellant No.1. All the said evidence definitely denotes that the act committed by the appellants cannot be said to be an act occurred at their hands in a heat of anger. On the contrary the evidence denotes that the same were calculated acts. Having regard to the same and having regard to the nature of the acts committed by them, we find it difficult to accept that the appellants were not entertaining the intention to commit the murder of deceased. Hence, we do not find any fault with such a finding arrived by the rial Court for the cogent reasons given.
22. Resultantly, we find no merit in the appeal and dismiss the same.
[ KODE P.D., J.] [ SMT. V.K.TAHILRAMANI, J.]
::: Downloaded on - 27/08/2013 20:45:02 :::