Bombay High Court
Kakasaheb Mohiniraj Khatik vs The State Of Maharashtra on 24 November, 2014
Author: A.I.S. Cheema
Bench: S.S. Shinde, A.I.S. Cheema
Cri.Appeal No.22/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.22 OF 2012
Kakasaheb s/o Mohiniraj Khatik
Age 42 years, Occ. Nil,
Con. No.C/16054 lodged in
Yerwada Central Prison, Pune-6 ... APPELLANT
VERSUS
The State of Maharashtra
through P.I., Newasa, Tq. Newasa
District Ahmednagar
(Copy to be served on the
Public Prosecutor, High Court of
Judicature at Bombay,
Bench at Aurangabad ... RESPONDENT
.....
Shri M.A. Tandale, Advocate (appointed) for the appellant
Shri D.V. Tele, A.P.P. for respondent/ State
.....
CORAM: S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
DATED: 24th November, 2014.
Date of reserving judgment : 30th October, 2014
Date of pronouncing judgment : 24th November, 2014.
JUDGMENT (Per A.I.S. Cheema, J.) :
1. The appellant/ original accused (hereafter referred as accused) Kakasaheb Khatik has been convicted in Sessions Case No.36/2010, by Additional Sessions Judge, Shrirampur on 28.6.2011 under Section 302 of the Indian Penal Code, 1860 (IPC for short) for ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 2 having committed murder of his wife Bebi Kakasaheb Khatik (hereinafter referred as the victim) and has been sentenced to suffer imprisonment for life and to pay fine of Rs.2000/- and in default, to suffer simple imprisonment for three months.
2. The facts in brief are as under :
(a) The accused was married to the victim some time in 1989.
From the marriage, he has elder son Pradeep (D.W.1) and younger son Pravin (P.W.1). They were living at Patharwala, Taluka Newasa, District Ahmednagar. The accused was doing work of driving truck and tractor. He was addicted to liquor. He was ill-treating victim and used to beat her after consuming liquor. On 28.5.2010, in the morning around 10.00 a.m., he had beaten the victim with yoke pin which broke. On the same day, in the evening at about 8.00 p.m., he again picked up quarrel with the victim and beat her with stick and using a brick. He had consumed liquor and started abusing his wife, and in the course of the event, poured kerosene which was in a can in the house on her and put her on fire. The victim ran out of the house shouting when her children put out the fire. Hearing her shouts, people from nearby gathered. As the quarrels were usual, earlier people had not assembled, but when such incident took place, they gathered. Elder son Pradeep went and called his uncle Sanjay Kardile residing some distance away and the victim ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 3 was taken in a vehicle to one Nityaseva Hospital, Shevgaon, who refused to admit her and these people proceeded to Civil Hospital at Ahmednagar.
(b) At the Civil Hospital, earlier an effort was made on request of police from Topkhana Police Station to record the statement of the victim on 29.5.2010 with the help of Special Judicial Magistrate Gorakshnath (P.W.3), but as the victim was not in a condition to give statement, the effort was given up. After treatment, when on 31.5.2010 the victim was in a condition to speak, the statement in the nature of dying declaration was recorded through the Special Judicial Magistrate Gorakshnath. The police from Topkhana Police Station forwarded the statement to the Police Station at Newasa where the offence bearing Crime No.128/2010 came to be registered by P.S.O. Sahebrao Bhoite (P.W.5).
(c) The investigation was taken over by P.S.I. Vikram Gaikwad (P.W.9). He went to the spot and recorded spot panchanama in presence of panchas, collected pieces of bangles, plastic can, match box, one half burnt match stick, kerosene mixed mud from the spot and duly sealed the same and deposited the articles in the police station. Later, the articles were sent on 21.6.2010 to Chemical Analyser at Nagpur through Police Constable Hanumant Garje (P.W.6).
Statements of witnesses were recorded on 1.6.2010 and accused also came to be arrested on the same day. The ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 4 arrest panchanama shows accused had burn injuries to his hand, neck and nose. The shirt of the accused was also seized. The same was also sent to the Chemical Analyser.
Topkhana Police Station forwarded the inquest panchanama to the Police Station, Newasa. The body of the victim was received by her brother Sanjay Kardile. Sanjay Kardile produced certain documents relating to earlier disputes where the accused had agreed to behave himself. The documents came to be seized. Post mortem report was collected from the hospital. The investigating officer produced the sons of the victim before Special Judicial Magistrate Ramkrushna Kulkarni (P.W.12) and their statements under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) were recorded. Taking other necessary steps for the purposes of investigation and collecting C.A. report, the charge sheet came to be filed.
3. The offence being Sessions triable, matter was committed to the Court of Sessions at Shrirampur for offence punishable under Sections 302, 498-A, 323, 504 and 506 of the IPC. Charge was framed for these offences. State brought on record necessary evidence.
However, the accused was acquitted for other offences and came to be convicted only under section 302 of IPC.
4. We have heard counsel for both sides. It has been argued ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 5 by the learned counsel for the appellant- accused that, the dying declaration (Exh. 29) recorded on 31.5.2010, converted into F.I.R.
relied on by the prosecutor was not reliable. The condition of the victim was not good and she was not in a condition to give such statement. It is argued that, there was delay in filing of the F.I.R. and the police should have recorded statements of the sons before the dying declaration was recorded. The parents and other relatives of the victim had reached the hospital soon after the incident and the dying declaration suffers from being tutored. Initially, the brother of victim had told the doctor that it was a case of accident. The accused had also burn injuries. Perusal of the dying declaration shows that in the last part, the sentences gradually are closer. Thus, according to the counsel, the dying declaration is doubtful. The relatives were present in the hospital when dying declaration was recorded. Although Pravin Khatik (P.W.1), the son of victim deposed against his father, the other son Pradeep (D.W.1) has supported the defence and thus, there is evidence of one son against the evidence of the other son. The victim had 98% burns. Reference was made to the case of Mohan Sadhu Kawale Vs. State of Maharashtra, reported in 2004 Cri.L.J. 4167 to argue that in that matter there were 100% burns and the dying declaration of the victim in that matter was not relied on. Reliance was placed on the case of Krishna Chandra Vs. The State, reported in 1996 Cri.L.J. 1507 also to argue that, where such extensive burns are there, relying on the dying declaration would be risky. Reference was made to the case of Ashok Pandurang Jadhav Vs. The State of Maharashtra, ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 6 reported in 2011 ALL MR (Cri) 2105, where it was held that the evaluation of dying declaration would depend on the testimony of persons before whom the declaration was made and medical opinion.
The counsel referred to the case of Gopal Vs. State of M.P., reported in 2009 ALL MR (Cri) 1532 (S.C.) and the case of Dhanraj Jairam Patil Vs. The State of Maharashtra, reported in 2012 ALL MR (Cri) 162, where there were multiple dying declarations and inconsistency was found.
Reference was made to the case of Laxman Vs. State of Maharashtra, reported in AIR 2002 SC 2973(1) to submit that it is essential requirement that the person who records dying declaration should be satisfied that the deceased was in a fit state of mind. Relying on the case of Ratan s/o Babhootsingh Rathod Vs. State of Maharashtra, reported in 2013 ALL MR (Cri) 240, it has been submitted that, if the present dying declaration is perused, it may not be believable that deceased regained consciousness enough to make such detailed narration of the incident.
On the basis of case law as referred above, the learned counsel submitted that, the present dying declaration (Exh. 29) should be disbelieved. It has been submitted that, in the face of evidence of D.W. 1 Pradeep, the evidence of the other son P.W.1 Pravin should be discarded.
5. Against this, the learned A.P.P. submitted that, the dying declaration is reliable and there is evidence of P.W.3 Gorakshnath ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 7 Ghugarkar, Executive Magistrate as well as evidence of Dr. Sanjay Thube (P.W.10), both of whom disclosed regarding the condition of the victim. They have recorded their satisfaction regarding the condition of the victim to make the statement and have properly followed all the necessary procedure for recording the dying declaration.
The dying declaration has been found to be reliable for the various reasons recorded by the trial Court, which cannot be discarded. It has been argued that, the defence witness Pradeep is not reliable as his evidence shows that, after the incident he did not tell anybody that the brothers had slept outside along with the accused and the mother came burning from inside. The witness has been fully discredited as he was confronted with his statement under Section 164 of the Cr.P.C., which had been proved through P.W.12 Special Judicial Magistrate Ramkrushna Kulkarni. According to the learned A.P.P., there is no reason to discard the evidence of P.W. 1 Pravin, who is son of accused, but has still deposed against the accused. Reference was made to the spot panchanama which shows that the house of the victim and accused was just a room with a big Ota in front. They were living in the field property. The kitchen of the house was in a different shed outside the living portion where the "Chul" (hearth for cooking) was there and thus, there was no question of accidental burns. The learned A.P.P. submitted that, the line of cross-examination and suggestions made are that the victim committed suicide. This itself shows that there were strained relations. According to him, there is sufficient material to show that the accused was addicted to liquor and in the ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 8 course of incident, due to anger, burnt his wife. Then, may be he tried to put out the fire and suffered injuries. It has been argued by the learned A.P.P. that, in the shirt of the accused also residues of kerosene were found by C.A. and cumulative effect of the evidence points out that the accused is guilty of the offence. The learned A.P.P. says that, the trial Court referred to various rulings in support of its findings as can be seen from the judgment and that the trial Court has given elaborate reasons for holding the accused guilty after recording the evidence of defence witness Pradeep. The learned A.P.P. wants the conviction to be maintained.
6. P.W.1 Pravin was 13 years old at the time of his evidence.
The incident had occurred about 7 months before his evidence was recorded. D.W. 1 Pradeep, the other son claimed his age to be 17 years at the time of evidence. If the evidence of both these brothers is perused, regarding certain facts, there does not appear to be any dispute.
This family was residing at Patharwala. The accused was doing the work of driving tractor. The victim used to do agricultural labour. The accused used to work for one Nilesh Kale as tractor driver.
The incident occurred on 28.5.2010. On that day, in the day time, the victim and these sons had gone to the marriage ceremony of daughter of one Pandurang Khatik. The accused had gone out in the day, but did return in the evening. While P.W.1 Pravin has deposed that in the ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 9 time of evening, the accused had come, having consumed liquor and asked for money to the victim, which she refused and thus, quarrel started; D.W.1 Pradeep had deposed that, when the father returned, he asked the victim for food, however, the victim did not serve food to his father i.e. the accused. D.W. 1 Pradeep then preferred not to say as to what happened further and claimed that he along with his father and younger brother (P.W.1) Pravin slept on Ota of their house. While P.W.1 Pravin has deposed that in the course of quarrel his father poured kerosene on his mother and set her on fire, and the victim started shouting and rushed outside the house; D.W.1 Pradeep has preferred to claim that they had slept outside the house and then heard shouts of his mother (victim) from the house and he woke up his father, and in the meanwhile, the mother came outside the house while she was burning and according to D.W.1, the accused tried to extinguish the fire by throwing blanket on her body. The evidence of these brothers is that, they had thrown water on their mother and extinguished her fire. Their evidence is that, D.W.1 Pradeep had then gone and called Sanjay Kardile, the maternal uncle.
7. The evidence of P.W.1 Pravin and P.W.2 Sanjay Kardile shows that the house of Sanjay is also in the same village. According to P.W.2, Sanjay is residing at Patharwala and house of accused was at a distance of about 1 Km. The evidence shows that, this brother of the victim put the injured in a vehicle and she was taken to Nityaseva Hospital at Shevgaon, and as the doctor refused to admit the patient, ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 10 she was taken to the Civil Hospital at Ahmednagar.
8. The evidence of P.W.1 Pravin as well as P.W.2 Sanjay shows that, the accused was addicted to liquor and used to beat the victim. D.W.1 Pradeep, who has preferred to support his father, was also not able to deny, and admitted in the cross-examination (Para 9) that, his father used to drink liquor occasionally. The evidence of D.W.1 Pradeep shows that, the family was relying on labour work to maintain the family and education expenses and if labour work was not available, there used to crisis in the family. He admitted that, his father was required to pay for liquor and his maternal uncle used to help the family whenever the family was in need of money. It shows a sympathetic uncle. In this background, the evidence of P.W.2 Sanjay is material that earlier in 1996, when the victim was assaulted after consuming liquor, there was a situation where the accused had executed a document on stamp paper to assure proper treatment to the victim. P.W.2 had deposed that, in 1996, victim Bebi came to his house as accused had beaten her and then the accused had executed stamp paper assuring good behaviour. P.W.2 has produced the stamp paper before police, which was seized by investigating officer P.W.9 Vikram Gaikwad under panchanama Exh. 38 in presence of panch P.W.7 Sudhakar. P.W.2 proved the document at Exh. 23, deposing that the document was written in his presence and that the contents were correct. Contents of the document Exh. 23 show that accused had on occasions beaten the victim under influence of liquor and that ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 11 he was regretting the same and assured that he would not beat her in future. The document is dated 2.8.1996. However, according to P.W.2, in spite of such document, the victim was required to file a civil suit against the accused for perpetual injunction so that he does not alienate the joint family property. The witness produced certified copy of notice under Section 52 of Transfer of Property Act registered after Regular Civil Suit No.299/1997 was filed. The trial Court marked the certified copy as Article A. The evidence thus shows that the victim was doing labour work and was bringing up her children and was also standing up to a difficult husband like the accused who was addicted to liquor and would assault her and she had to stand strongly to even protect the family property. The evidence shows that, in spite of the victim's brother helping out the family, the accused was not behaving himself and was ill-treating the victim.
9. P.W.1 Pravin was extensively cross-examined. He gave details regarding the facts that his brother Pradeep was now working with one Nilesh Kale of Kukana and was studying. He admitted that, since that night, he was residing with his maternal uncle. Against this, D.W.1 admitted that after the incident he was residing with his aunt Mirabai Khatik (para 5) and it appears now he was residing at Kukana with his employer Nilesh Kale. The evidence of P.W.1 Pravin, in the cross-examination, gives details that their house was a room of about 10 x 15 ft. with an Ota adjacent. Barrels of water used to be kept in front of the house. The cross-examiner took further details from the ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 12 witness regarding performance of some religious ceremonies earlier and the relatives attending the same. He accepted that the nature of his mother was angry. There is nothing surprising about this as the victim had to fend for herself so as to take care of her children and the family assets, against a difficult husband. P.W.1 Pravin admitted that, on the day of incident, after taking dinner, he, his mother and brother were on their Ota where they had kept their beddings for sleeping. His evidence shows that, in that evening and night, electric supply was there and they were chit-chatting on the Ota. He, however, denied that, after chit-chatting, they had all slept. The accused himself suggested to P.W.1, in the cross-examination that, on that evening, when the accused returned, the victim was asked to give dinner, but she refused and quarrel started. The suggestion of such cause of quarrel was denied. Thus, quarrel took place is not in dispute except that P.W.1 claimed that the quarrel was due to demand of money by the accused while accused claims that, the same was due to non serving of dinner. In the cross-examination of P.W.1, it was suggested to him that in the quarrel the victim herself put fire to herself after pouring kerosene. The suggestion was denied. Fact remains that, the evidence of P.W.1 survives that, kerosene was indeed poured on the person of the victim and fire was put to her person.
10. In the cross-examination of P.W.1, further details were brought on record as to how the victim was taken to the hospital.
Certain aspects were pointed out to the witness as omissions and ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 13 counsel for accused asked regarding the same to the investigating officer (P.W.9) and P.W.9 deposed (in para 6) that P.W.1 Pravin had not stated before him that his father had returned home at 9.00 to 9.30 a.m. after consuming liquor and that regarding the incident of the evening, he had not stated that the father returned at about 7.00 to 7.30 p.m. Fortunately, the trial Court has taken care to make a note that the omissions related to only regarding aspect of time. There is another minor omission that as the mother did not pay money, the father started the quarrel. Perusing the evidence of P.W.1 Pravin and reading the same with the evidence of investigating officer, the above and other omissions brought on record are minor omissions which do not shatter the main incident deposed to by P.W.1 Pravin that indeed there was a quarrel and in the course of incident, the accused poured kerosene on the victim and put her to fire.
11. Having examined the evidence of P.W.1 Pravin and going through the reasons recorded by the trial Court, while accepting the evidence of Pravin, we find that, although Pravin was 14 years of age at the time of his evidence, he was of mature understanding and knows sanctity of the oath. There are no material contradictions or omissions in the evidence of this witness. We find no reasons to discard his evidence. Looking to the other circumstances, as appearing true from the case of prosecution which we will discuss, and reading the evidence of this witness, we find that, the same inspires confidence. The trial Court has also accepted his evidence and we find ourselves agreeing ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 14 with the trial Court.
12. Coming to the evidence of defence witness Pradeep, the other son, regarding the day of incident, he tried to depose that, earlier at 5.00 p.m., his mother had a quarrel with P.W.2 Sanjay Kardile for not returning Rs.45,000/- paid to Sanjay for purchasing Magic Car and that, his mother had threatened the uncle that if he was not returning the money, she would commit suicide. Thus, effort was made to put the blame on P.W.2 Sanjay. This is against what the witness himself further deposed in cross-examination that their condition was such that if labour work was not available there would be crisis in the family and the witness did accept subsequently that, his maternal uncle would rather help the family whenever the family was in need of money.
Although D.W.1 tried to claim that Rs.45,000/- had been given by the victim to her brother Sanjay to buy Magic Car, the witness still deposed that, after the incident, when he went to his uncle to call the uncle, they had both come to the spot by walking and Commander Jeep of one Shivraj Khatik was taken to carry the victim to the hospital. This is against the evidence of P.W.4 Sanjay, who deposed in his cross-
examination that, he owns TATA Maxi Jeep and by the said jeep he had reached the house of accused on the day of incident after he was told about the incident. He denied that the accused had given him money to purchase the said jeep. His evidence is that, he reached the house of the victim and with the help of people he took the victim in the jeep.
Looking to the natural course of conduct, in situation like this, the ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 15 brother is bound to rush to the spot by his jeep and help his sister. We thus do not find the evidence of Pradeep convincing that when he went to his uncle, they came down by walking and took vehicle of somebody else.
Although D.W.1 Pradeep has tried to give a clean chit to his father- the accused, in his evidence, he was unable to give any explanation or reason as to why after the incident his father did not accompany them in taking the victim to the hospital or as to why the accused did not go to the hospital. The fact indicates that, the witness has tried to help his father, but is unable to defend the subsequent conduct of the accused. The evidence of D.W.1 shows that the accused had also suffered injuries in the course of incident where after the victim started burning and shouting, the accused had tried to put out the fire, but then there is no reason why the accused did not accompany the victim to the hospital, when he also had suffered burn injuries and required treatment. The witness D.W. 1 admitted that his father never went to the Civil Hospital to meet his mother.
Evidence of D.W.1 Pradeep is further surprising that before entering the witness box, he had not told anybody about the incident. His evidence shows that, he did go and meet his father couple of times. In the further cross-examination, he tried to claim that, he did go to the Kukana Police Outpost, but he claimed that nobody heard him. However, there is nothing to support further ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 16 evidence of this witness as he does not know anything as to which police officer he met and why he did not go to superior officers. The defence witness was residing with his aunt Mirabai Khatik after the incident and this is also a fact to be kept in view although not decisive one by itself to doubt the witness.
The evidence of this defence witness needs to be discarded also because he has been discredited. He was confronted with his statement recorded by P.W.12 Kulkarni Special Judicial Magistrate. D.W.1 claimed that, no such statement was recorded. The witness has gone to the extent of denying his signature also. All the details of the statement were put up to him but he denied the portions A and B as well as his signature. The witness admitted that, he had no cross terms with the Special Judicial Magistrate Shri Kulkarni or the investigating officer. The evidence of investigating officer P.W.9 as well as the evidence of Special Judicial Magistrate P.W.12 Ramkrushna Kulkarni shows that this witness had soon after the incident, stated before Special Judicial Magistrate that the accused had put his wife to fire in the quarrel. D.W.1 Pradeep has been thus confronted with his earlier statement under Section 164 of the Cr.P.C. and the fact shows that, the witness is not reliable when now he is claiming that his father was sleeping outside when the incident occurred. We do not wish to rely on such defence witness. D.W.1, a son may prefer to depose false to save his father but it is not likely that another son would falsely implicate his father for no reasons. There is nothing to show that he ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 17 had any axe to grind against his father. Neither there is material that his uncle P.W.2 Sanjay had anything inimical to falsely involve accused.
The defence evidence is not sufficient to even raise doubts on the otherwise reliable evidence of P.W.1 Pravin and his uncle P.W.2 Sanjay.
13. Looking to the evidence of the two brothers, we do not find delay in the matter to be fatal for prosecution. The record shows that, the incident took place at a small place like Patharwala and the victim was immediately rushed to Ahmednagar for treatment. The hospital appears to have been in the area of Topkhana Police Station of Ahmednagar and the Police there, for a matter not of their jurisdiction and of villagers appear to have preferred to wait for the victim to be in a condition to make statement. The evidence of P.W.3 Gorakshnath Ghugharkar, Special Judicial Magistrate shows that on 29.5.2012 itself he had received letter from Topkhana Police Station for recording dying declaration of the victim and he did go to the hospital, but could not record the dying declaration as the victim at that time was not in a condition to give statement. Document regarding this has been proved at Exh. 27.
14. The evidence of P.W.3 Special Judicial Magistrate is that on 31.5.2010, he received letter from Topkhana Police Station for recording dying declaration of the victim and he has proved the letter at Exh.28. His evidence shows that, he went to the Civil Hospital at about 12.00 o'clock in the afternoon. He met Chief Medical Officer Dr. ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 18 S.R. Thube. The evidence of this witness and the evidence of P.W.10 Dr. Thube shows that, both of them had gone to the victim. The doctor examined the victim Bebi Khatik and found that she was fully conscious and fit to give statement. According to doctor, he asked her certain questions and was of the opinion that she was in a condition to make statement. Special Judicial Magistrate has also deposed that, he also confirmed that the patient was fully conscious and fit to give statement. The evidence of these witnesses shows that the police and other persons and relatives were asked to go out. From the evidence of these witnesses, it can be seen that, P.W.3 put questions to the victim and recorded answers as given by her. He enquired regarding her name and her family and further asked her as to how she got burnt.
Dying Declaration Exh. 29 recorded shows that the victim informed that the accused used to drink liquor and was not helping with the family expenses. She informed that, she was doing labour work and was maintaining the family. She stated that, the accused was addicted to liquor and under the influence he used to beat her and abused her. The dying declaration recorded shows, the victim informing that on 28.5.2010 in the morning the accused had beaten the victim using Shival ( i.e. yoke pin) which broke. In the evening also he had beaten her after having consumed liquor, using a brick.
She informed that accused had abused and beaten her with a stick also and had thereafter poured kerosene on her from the plastic can and ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 19 put her to fire. She claimed that, she did not think that the husband would go to such extent, but when she was put to fire, she ran out shouting and her children extinguished her fire. She stated that, because of her shouting, nearby people gathered.
15. The above is the substance of the dying declaration with regard to the incident. The evidence of P.W.3 Gorakshnath and P.W.10 Dr. Sanjay has proved the document. The evidence of these two witnesses shows that, after the dying declaration was recorded, the same was read over and the victim accepted the contents of the dying declaration to be correct. The evidence is that, as the hands of the victim were burnt, the impression of left toe was taken and the same was attested by P.W.3 Gorakshnath. After the dying declaration was recorded, P.W.10 Dr. Sanjay again examined the victim and again endorsed on the document that the patient was fully conscious and fit to give the statement throughout and was conscious even after the end of the statement.
16. We have perused the rulings relied on by the learned counsel for the appellant- accused with reference to dying declarations which have been referred above. Having gone through the said judgments, we find that, the judgments are on the basis of facts as found in those matters. We are keeping in view the principles as appearing from those judgments. After going through the facts of the present matter and the law, we find that, the dying declaration ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 20 recorded does inspire confidence. P.W.3 Gorakshnath and P.W.10 Dr. Sanjay have been extensively cross-examined. However, we do not find that the witnesses could be said to be shattered or shaken as far as their evidence is concerned regarding the victim to be in a condition to make statement on the day concerned. Merely because she passed away on 1.6.2010 will not be a reason to presume that on 31.5.2010 she was not in a condition to make a statement. Learned counsel for the appellant- accused argued that, the evidence of P.W.10 Dr. Sanjay shows in the cross-examination that between 29.5.2010 till 31.5.2010, the condition of the victim was serious. There can be no doubt about this. A patient with 98% burns would naturally be in serious condition in the initial days. However, that does not mean that the patient cannot be conscious or the patient cannot be in a condition to make a statement. It has been then argued that, dying declaration Exh.29 on back side shows that in the last part of the dying declaration, gap between the lines was reduced. According to the learned counsel for the appellant- accused this makes the dying declaration doubtful. We find that the dying declaration is handwritten and on the back side of the page after half the portion was used, the writer gradually reduced the space between the lines. This can happen even when the writer while taking down the statement feels that it would be better that the statement is in one sheet. Merely because half page of the back side of the sheet has lines with space gradually reduced would not be reason to doubt the document. Looking at the document, it cannot be said that a line has been squeezed between lines. We do not wish to ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 21 raise doubt only for the purpose of raising doubts. We have gone through the reasonings recorded by the trial Court for the purpose of accepting the dying declaration Exh.29 and we find that the same need to be accepted and the dying declaration Exh.29 needs to be relied on.
In addition, there is evidence of P.W.2 Sanjay who was told by victim while she was being taken to hospital that her husband set her on fire.
The evidence of oral dying declaration also cannot be said to be shattered.
17. There is no substance in the argument that P.W.10 admitted in cross-examination that on 29.5.2010 in case papers entry was made of accidental burns on the basis of what brother of victim informed and so Exh.29 is doubtful. Spot shows that the hearth was outside and not in the room where incident took place. The brother was not witness of the incident and even the defence of accused is not of accidental burns. In the room concerned, there was no cause of accidental burns. We have already referred to evidence that electricity was there. We discard argument on this count.
18. For the above reasons, we do not find any substance in this appeal as far as regards the incident is concerned. The evidence does show that the victim suffered culpable homicide at the hands of her husband i.e. accused.
19. However, we find from the record that the marriage was ::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 22 an old one and in the evening of the day of incident, the accused, when he came home, he had already consumed liquor. The evidence of P.W.1 shows that, the quarrel started between the couple on the count of money while the evidence of D.W.1 Pradeep is that, when the accused had asked for food, the victim had declined the same. What is material is that, there was a trigger for the quarrel between the couple and in the heat of moment, the accused put his wife to fire. The evidence also shows that, he tried to put out the fire and then appears to have ran away. In the matter of Dada s/o Budha Baisane Vs. The State of Maharashtra reported in 2010 ALL MR (Cri) 3496, in similar matter, this Court has observed in para 17 as under :
"Upon taking the contents of the dying declaration as it is, it appears that the appellant asked for money from his wife Begambai (deceased) for consuming liquor and on refusal, kerosene was poured on her person and she was set ablaze by the appellant/ accused. While accepting the case of the appellant, this Court in case of Dilip Janaba Kamble Vs. The State of Maharashtra (supra), did take into consideration percentage of burn injuries and also the fact that the appellant therein did not come to the spot armed with weapon. After quarrel ensued, the appellant took kerosene which was available in the house and poured on Kalpana and set her on fire. In the present case also, it is not the case of the prosecution that the appellant came armed or had preplanned or there was premeditation to commit murder of his wife. On refusal of money for consumption of liquor and quarrel, it appears that the appellant in the heat of passion followed his wife home, took kerosene and poured on the person of Begambai and set her ablaze. He did not take disadvantage and in the course of incident itself tried to put out the fire. Therefore, taking into consideration the attending circumstances, including injuries noticed by the police officer on right hand and both knees of the accused/ appellant and the fact that he poured water on the person of Begambai soon after the occurrence and that, there was no premeditation as such, we are of the view that exception 4 to section 300 of IPC applies to the facts of the present case and appropriate conviction would be u/s 304 party II of IPC.::: Downloaded on - 26/11/2014 23:47:44 ::: Cri.Appeal No.22/2012 23
20. For similar reasons, even in this matter, we find that, exception 4 of Section 300 of the IPC applies and the appropriate conviction should be under Section 304 Part II of the IPC instead of Section 302 of the IPC.
21. For the above reasons, the conviction and sentence of the appellant under Section 302 of the Indian Penal Code, 1860 is set aside and instead, the appellant is convicted under Section 304-II of the Indian Penal Code, 1860 and for the said offence, the appellant-
accused is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2000/- (Rupees two thousand), and in default of payment of fine, to suffer simple imprisonment for three months.
Criminal Appeal is accordingly partly allowed.
Appointed Advocate Shri M.A. Tandale for appellant-
accused be paid Rs.10,000/- as fee from legal aid.
(A.I.S. CHEEMA, J.) (S.S. SHINDE, J.)
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