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Babasaheb-vs-State Of Maharashtra on 16 March, 2004

Bombay High Court Babasaheb-vs-State Of Maharashtra on 16 March, 2004
Equivalent citations:II (2004) DMC 457
Author: B Marlapalle
Bench: B Marlapalle, N Dabholkar

JUDGMENT

B.H. Marlapalle, J.

1. In Sessions Case No. 78 of 1984 the appellant-original accused was put on trial for offences punishable under Sections 302 and 498A of the Indian Penal Code and by his judgment and order dated 19.1.1985 the learned Additional Sessions Judge, Ahmednagar, convicted the accused for both the offences but sentenced him to suffer life imprisonment under Section 302 of the Code. No separate sentence was imposed for offence punishable under Section 498A of the Indian Penal Code. The said order of conviction and sentence is a matter of challenge in this appeal.

2. The prosecution story unfolds as under:

The accused was married to Alkabai, daughter of P.W. 3 Shantabai on or about 8.3.1977 when she was a minor (11 or 12 years of age). The accused was having some job at Mira. Both of them are residents of village Athwad in Taluka and District Ahmednagar. About three years after his marriage the accused returned to his village and, therefore, Alkabai started co-habiting with him. He was getting some job intermittently. His last job was as a watchman in Ahmednagar town which also he lost. He was staying jointly with his parents but around Diwali festival of 1983 he separated from them and was given some land to cultivate and separate house adjacent to the house of Ansabai (paternal aunt of the accused). This development appears to be on the count that Alkabai was complaining of ill-treatment to her because she was asked to do the entire household work.

On 11.4.1984 the accused was collecting his clothes early in the morning so as to go and stay with his parents. When Alkabai came to know about this, she reportedly told him that while he was leaving his house to go and join his parents he was required to make some arrangements for herself and minor child Sandip. The accused, therefore, got infuriated, picked a plastic can lying in the house, poured kerosene on the person of Alkabai and set her on fire after he latched the door of his house from inside. One of the neighbours went to P.W. 3 Shantabai and P.W. 7 Gayabai–both the members of joint family–and informed about Alkabai sustaining burn injuries, They rushed to the spot along with some other persons in their family. When they went in the house, they saw that the accused was present there and Alkabai was burnt. She was moaning and her minor child was crying. In the meanwhile, the brother of the accused by name Bhagirath also came at the spot and Alkabai was taken to Ahmednagar Civil Hospital by bus. Or, Ranade was the Medical Officer on duty at about 10 a.m. at the Civil Hospital, Ahmednagar, when Alkabai was admitted in the said hospital in the burn ward. Dr. Ranade advised his colleague Dr. Athare to look after the patient and he gave intimation to the police regarding the burn case. The Police Constable Bhingardive attached to the City Police Station informed the Taluka Police Station that a burn-case patient namely Alkabai was admitted in the Civil Hospital at Ahmednagar and she was set on fire by her husband between 8 and 8.30 a.m. on the same day. Police Constable Buckle No. 1075 made an entry in the station diary of Taluka Police Station at about 10.25 a.m. P.W. 8 Chavan, PSI, issued a requisition at Exhibit 16 to the Executive Magistrate at about 11.45 a.m. Accordingly, P.W. 4 Changdeo Khalekar, Executive Magistrate, went to the Civil Hospital around 12 noon and recorded a dying declaration at Exhibit 17. However, before the Executive Magistrate recorded the dying declaration, P.W. 8 Chavan, PSI, went to the hospital and recorded the statement of Alkabai at Exhibit 16 at about 11.30 a.m. It was treated to be a first information report at Exhibit 30 for an offence punishable under Section 307 of the Indian Penal Code. Alkabai remained under treatment and she succumbed to the burn injuries at about 8.30 on 14.4.1984, In the meanwhile, on registration of the first information report the accused was taken in custody, Spot Panchanama at Exhibit 13 was conducted and the dead body was sent for post-mortem. Dr. Pote conducted the post-mortem and signed PM notes at Exhibit 22. The offence was converted to Section 302 of I.P.C.

Wednesday, 17th March, 2004.

3. Admittedly there is no ocular evidence and the prosecution case is based on the circumstantial evidence that has come on record through P.W. 3 Shantabai and P.W. 7 Gayabai as well as two dying declarations at Exhibits 17 and 30 in addition to the medical evidence.

4. By scrutinising the oral evidence of Dr. Pote (P.W. 5) and the post-mortem notes at Exhibit 22, it is not “disputed that Alkabai died because of 90% burn injuries she had sustained on 11.4.1984. The only question that was required to be considered by the Trial Court was whether the said death was suicidal or homicidal and more so because it was nobody’s case that it was an accident. The Trial Court has recorded a finding that Alkabai’s death was homicidal. It was caused by the appellant by setting her on fire. Mr. V.N. Damle, learned Advocate for the appellant, has taken an exception to the view taken by the Trial Court and submitted that two dying declarations recorded by PSI P.W. 8 Chavan and the Special Executive Magistrate Khalekar (P.W. 4) at Exhibits 30 and 17, respectively, are not reliable and the other two witnesses namely, P.W. 3 Shantabai and P.W. 7 Gayabai being interested witnesses their story is not worthy of acceptance. He also referred to the fact that prior to the date of incident the accused was not staying with his wife i.e., deceased Alkabai for about four days and on the date of the incident he had come to his house but he was sitting outside his house with his aunt Ansabai and the minor child between 7.30 and 8 a.m. He suddenly noticed smoke coming through his house and, therefore, tried to enter the same but the door was latched from inside. He, therefore, entered the house of his aunt Ansabai, pushed wooden almirah which was used as a partition between the two houses and entered his house. He noticed that the deceased burnt herself.

5. Mr. V.B. Ghatge, learned Additional Public Prosecutor on the other hand has supported the order of conviction and sentence,

6. We are required to consider whether the prosecution has proved its case beyond reasonable doubt that it was the appellant who caused the death of Alkabai by setting her on fire between 7.30 and 8 a.m. on 11.4.1984 in his own house at village Athwad Taluka and District Ahmednagar. Let us first go to the dying declaration recorded by P.W. 8 PSI Chavan which was subsequently converted into a first information report at Exhibit 30. In his depositions before the Trial Court, he stated that he was on duty at Taluka Police Station at Ahmednagar and received a message about a burn case through Police Constable Bhingardive of City Police Station at Civil Hospital, Ahmednagar. He, therefore, rushed to the Civil Hospital and met Dr. Ranade, Medical Officer on duty, between 11 and 11.50 a.m. He inquired with him whether the patient was in condition to make a statement regarding the occurrence. Dr. Ranade issued a certificate to the effect that the patient was in a fit condition to give statement (Exhibit 24). PSI Chavan, therefore, proceeded to record Alkabai’s statement and as per his dictation same came to be recorded by the Writer Constable. It was read over to her and she admitted the contents thereof. As the victim was unable to sign because of her injuries, her thumb impression was taken and he had signed the certificate at Exhibit 30. Alkabai disclosed to him that she was married with the accused about seven years prior to the date of the incident and begot a son of three years. The couple was staying separately from the other members of the family for the last about 8 months and 15 gunttas of agricultural land was given to the accused for cultivation and livelihood. Wheat was harvested and yield was about three bags. The accused wanted to give half of the yield ,to his parents and, therefore, the deceased had opposed the same. Being infuriated by this opposition she was assaulted on 8.4.1984 which fell on Sunday while they were in their field. From that day onwards the accused had gone to stay with his parents. He returned to his house on 11.4.1984 at about 7 a.m., started collecting his clothes and, therefore, the deceased asked him about. She was informed that he wanted to go and stay with his parents. She told him to make arrangements for herself and the child. He got annoyed on this and poured kerosene on her person by turning lamp on her. Thereafter he picked up a match-stick, lit it and threw the same on her person. Prior to this, he had already latched the door of the house from inside. As she was wearing a nylon saree she fell on the ground as soon as it caught fire. She shouted loudly and within a short time her mother, grant-mother and aunty reached the spot. They inquired with her about the incident and she informed that she was set on fire by the accused after he had poured kerosene on her person. She had also told them to take care of the minor son in her absence. After some time, Bhagirath, brother of the accused, reached the spot and all of them took her to Nagar Civil Hospital.

7. In his cross-examination the defence could not bring anything to falsify or doubt the disclosures as made by the deceased and recorded by P.W. 8 regarding the incident namely, arrival of the accused to his house at about 7 a.m. and the events that had taken place till she was admitted in Nagar Hospital. This disclosure as recorded was subsequently registered as a first information report at about 11.30 a.m. on 11.4.1984. It bears the endorsement of P.W. 6 Dr. Ranade that the patient was in a condition to make a statement. This endorsement was made at 11.30 a.m. Dr. Ranade in his evidence has categorically stated that PSI Chavan had met him around 11 to 11.30 a.m. and inquired about the fitness of Alkabai so as to record her statement. He also disclosed that he had examined the patient and found her fit to make a statement and, therefore, he endorsed accordingly on the dying declaration.

8. Section 32 of the Indian Evidence Act, 1872, nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration. It also does not state that a dying declaration should be made only in expectation of death. Explanation 1 appended to Section 32 of the Act specifies that when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question would be a relevant factor. Whether a dying declaration recorded by a police officer could be converted into a first information report fell for consideration in the case of Ramawati Devi v. State of Bihar, . The relevant observations of the Supreme Court in the said decision are recorded as follows:

“….. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration had been properly proved.”

The Trial Court accepted that the disclosures made by the deceased and as recorded by the police officer could be converted into a first information report. The Trial Court further held that it was not necessary that such a dying declaration should only be made before a Magistrate. We have also noted that this dying declaration does not suffer from any infirmities. We do not, therefore, agree with the submissions of the learned Counsel for the appellant challenging the reliability or legality of said dying declaration. In this regard, we are fortified by a recent decision in the case of 2004(2) Supreme 93.

9. We now come to the subsequent dying declaration at Exhibit 17 recorded by the Special Executive Magistrate. While in the witness-box Changdeo Khalelkar, Special Executive Magistrate from 17.7.1978 to 31.8.1984 at Ahmednagar; on 11.4.1984 he received the written request from PSI, Taluka Police Station (Exhibit 16) for recording the dying declaration of one Alkabai Nanasaheb Lagad at about 11.45 p.m. and he immediately went to the Civil Hospital. On reaching the Civil Hospital he first went to Dr. Ranade, requested him to examine the patient and give report about her fitness. Dr. Ranade accompanied him, went to the patient and examined her. The doctor opined that the patient was in fit condition to make a statement and, accordingly, made an endorsement on the dying declaration. After ascertaining about the patent’s fitness, he proceeded to record her statement after he had asked her relations as well as police officials to go out. He disclosed his identity to the patient and also informed her that he had come to record her statement and that she should (tell) him true incident as occurred. The replies given by her were recorded in his own handwriting and in question and answer form. We have perused the recorded dying declaration at Exhibit

17. Alkabai stated that the incident had taken place on 11.4,1984 in the early morning while she was in her house. The accused was in the house in her company and he latched the door of the house from inside, picked kerosene can, poured kerosene on her person, he lit a match-stick and threw it on her saree. This had happened at about 8 a.m. As Alkabai was wearing a nylon saree it immediately caught fire, she fell on the ground, some people from the second door entered her house and extinguished fire. While explaining the reason for the incident she informed that out of the yield of wheat in the current season 50% of the quantity was insisted to be given to his parents by the accused. She had opposed the same. She was brought to the hospital by the husband, his brother and uncle as well as her mother and aunt Gayabai. Dr. Ranade in his depositions before the Trial Court confirmed that P.W. 4 Khalelkar had met him in the Civil Hospital before the dying declaration was recorded and at his request the doctor had gone to the patient, examined her and the Special Executive Magistrate had recorded the dying declaration. This testimony confirms that the patient was examined about her fitness, the doctor recorded his opinion that she was in fit condition to make a statement and the medical evidence also shows that before the statement was recorded no sedatives (pathedrin) were administered to the patient.

10. The law regarding reliability and legal requirements of dying declaration has been set at rest by the Constitution Bench of the Supreme Court in the case of Laxman v. State of Maharashtra, III . The criticism of two dying declarations by Shri V. N. Damle is ill -founded and we overrule the same. We find that these dying declarations do not suffer from any infirmities. They have been rightly accepted by the Trial Court as reliable.

11. Now coming to the evidence of P.W. 3 Shantabai and P.W. 7 Gayabai, Mr. V.N. Damle, learned Advocate for the appellant, submitted that the same supports his case that the deceased met a suicidal death and when the accused noticed that the deceased had set herself on fire he attempted to extinguish fire. He also submitted that as per the evidence of these two witnesses the accused was present at the spot when they arrived at the scene and if the accused had really set his wife on fire in normal course of behaviour he would not have been present on the spot. He also submitted that the connecting door of two houses i.e., the house of the accused and his aunt Ansabai was cleared before these two witnesses reached the spot which implied that the accused had entered his house through the house of his aunt and noticed for the first time that the deceased had set herself on fire. These submissions do not commend to us. It has come consistently in the evidence of these two witnesses that while they were in their house which was at a distance of a furlong or little more away from the spot of incident they reached there and knocked the southern door of the house. They noticed that it was latched from inside and in spite of their call to open the same it was not opened. They, therefore, forced their entry through the house of Ansabai and pushed wooden Almirah which fell down and cleared their way to enter the house of the accused. When they went to the spot, they noticed that the deceased was moaning. The fire flames had stopped, the accused was present at the spot and the minor son was crying. They inquired from the deceased as to how she received the burn injuries. They were informed by the deceased that, her husband i.e., accused poured kerosene on her person after he had latched the door from inside and set her on fire by lighting a match-stick. This disclosure regarding the incident could not be shaken in the cross-examination. Though we have noticed some improvisation in the evidence of these two witnesses, they are not material. Their testimony in the cross-examination may at the most lead to an inference that before they reached the spot some one else had already reached there, pushed the wooden Almirah and cleared the entry from the house of Ansabai to the house of the accused. But that does not mean that it was the accused and not anyone else who had reached the spot before these two witnesses. From the defence statement at Exhibit 36 submited by the accused on 1.12.1984 before the Trial Court it is clear that Ansabai was present in her house in the morning of 11.4.1984. Her house was opened. The plea of the accused that the deceased set herself on fire after she had latched the door from inside is most unreliable and the Trial Court has rightly discarded the same. Both these witnesses have unequivocally stated that as soon as they reached the house of the accused they noticed that the door of the house was latched from inside, they knocked on it and shouted to unlatch it from inside. The accused was present in the house but did not open the door from inside and, therefore, they had forced their entry from the house of Ansabai. The oral disclosures made by the deceased to these two witnesses regarding the complicity of the accused in setting her on fire cannot be doubted. These disclosures were made in presence of the accused. He was present along with these two witnesses right from his house till the patient was admitted in the Civil Hospital at Nagar. This rules out the possibility of the deceased being tutored by her relations before her dying declarations were recorded by P.W. 8 PSI Chavan and P.W. 4 Khalelkar, Special Executive Magistrate.

12. When the accused had taken the defence that his wife committed suicide it was necessary for him to bring on record the evidence in support of such a plea. It was also possible for the accused to examine Ansabai as his defence witness in view of his defence in Exhibit 36 but he chose otherwise. This is an additional circumstance against him. Even otherwise, we have examined the spot Panchanama in which cooking kerosene-stove does not find place. Exhibit 60, which was a requisition sent by PSI P.W. 8 Chavan to the Executive Magistrate mentions the cause of burn injuries to be bursting of kerosene stove. Mr. V.N. Damle, learned Advocate for the appellant, placed heavy reliance on this document and submitted that even as per the prosecution the deceased died a homicidal death was not acceptable. We do not agree with these submissions. The entry in the station diary was taken by the Police Constable Buckle No. 1795 at about 10.25 a.m. and not by PSI P.W. 8 Chavan who had claimed so in his examination-in-chief before the Trial Court. The said witness has specifically admitted that the police station had received a message (from) Police Constable Bhingardive from the Civil Hospital that a patient of burn injuries was admitted and, therefore, he rushed to the hospital to record the dying declaration. His role is only to that extent. We, therefore, do not find any reason to give much weight to the contents of Exh. 16.

13. We have also examined other relevant obtaining circumstances. The deceased was unhappy with her mother-in-law as has come in the evidence of P.W. 3 Shantabai and P.W. 7 Gayabai. Just about eight days prior to the date of the incident the accused and the deceased were staying separately, the accused was allotted about 15 gunthas of agricultural land for cultivation so as to have means of livelihood. He had got yield of three bags of wheat and he was intending to give half of it to his parents. This was opposed by the deceased end on that count she was assaulted by a stick on 8.4.1984. This incident has been admitted in the defence statement at Exhibit 36 submitted by the accused himself before the Trial Court. The couple had son of three years and the deceased was carrying for the second time as is clear from the post-mortem notes. The story put up by the accused regarding the deceased committing suicide is, therefore, unreliable. It would not be safe to believe that when she had received 90% burn injuries she would falsely implicate the accused. The Trial Court has examined the evidence, the obtaining circumstances and rejected the defence plea. The Trial Court recorded a finding that the prosecution had proved its case beyond reasonable doubt that it was the accused who had set Alkabai on fire on 11.4.1984 in their house. We do not find any infirmity in this view. We, therefore, confirm the impugned judgment and order of conviction and sentence.

14. In the result, this appeal fails and it is hereby dismissed. The judgment and order dated 19.1.1985 in Sessions Case No 78 of 1984 passed by the learned Additional Sessions Judge, Ahmednagar, is hereby confirmed. The bail bond of the appellant original accused shall stand cancelled. The appellant shall forthwith surrender to serve the sentence. We direct the learned Sessions Judge at Ahmednagar to submit a compliance report within two weeks and if the accused does not surrender within this period of two weeks the learned Sessions Judge shall issue non-bailable warrants for his arrest.

15. Mr. V.N. Damle, learned Advocate for the appellant, made an oral application to grant one month’s time to the appellant to surrender. The prayer is hereby rejected.

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