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Dilip Vasant Sawant-vs-The State Of Maharashtra on 27 January, 2010

Bombay High Court Dilip Vasant Sawant-vs-The State Of Maharashtra on 27 January, 2010
Bench: P. B. Majmudar, Rajesh G. Ketkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1171 OF 2002

Dilip Vasant Sawant,

Age: 39 years,

R/at.Mithbav, Sawantwadi,

Tal.Devgad, District: Sindhudurg. .. Appellant (Orig.Accused)

V/s

The State of Maharashtra

(At the instance of PSI Devgad Police Station,

Tal.Devgad). .. Respondent Mr.Ganesh Gole for the Appellant.

Smt.V.R.Bhosale, APP for the State.

CORAM : P.B.MAJMUDAR &

R.G.KETKAR, JJ.

DATE : 27TH JANUARY, 2010

JUDGMENT : (Per R.G.Ketkar, J.)

1. This appeal is preferred by the original Accused challenging the Judgment and Order dated September 12, 2002 passed by the learned Additional Sessions Judge Sindhudurg-Oros in Sessions Case No. 17 of 2001. By the impugned Judgment and Order, the learned Sessions Judge acquitted the accused for the offence punishable u/s.498A Indian Penal Code (for short hereinafter referred to as IPC) and convicted him for the offence 2

punishable u/s.302 IPC and sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.500/- I/d.to suffer Rigorous Imprisonment for 15 days.

2. The case of the prosecution is that the marriage of the accused with Deepika @ Alka (hereinafter referred as the victim) took place for about 10 to 12 years prior to the incident. Out of the wedlock, the couple is blessed with two sons Nachiket & Nimish. Prior to the marriage the assused was working in Mill at Mumbai. After marriage he shifted to village Mithbav, Taluka Devgad. It is the case of the prosecution that the accused was addicted to liquor and used to beat the victim under the influence of liquor. The father of the victim Vasant Rajaram Parab is resident of village Hindale, Tal.Devgad which is at a distance of half kilometer from the village of the accused Mithbav.

3. It is the case of the prosecution that on December 29, 1999 victim had lodged complaint with Devgad police against the accused. The said complaint was registered as N.C.No.581 of 1999. One year prior to the incident of May 6, 2001 the victim came to her father Vasant PW-4 and reported that the accused 3

had beat her because she had lodged complaint against the accused at Mithbav police station. After this, the victim was residing in his house for about three months. Accused came to the house of PW-4 Vasant and assured that he will not beat the victim and behave properly. In view of that assurance, the victim returned to the house of the accused. However the victim reported that there was no improvement in the behaviour of the accused.

4. It is the case of the prosecution that since morning of May 6, 2001 accused started taking liquor and started quarreling with the victim. At about 8 p.m. Accused quarreled with the victim on account of meal and beat her. He then poured kerosene on her body and by using match box set her on fire. The victim and her two sons started shouting. On hearing their shouts, the neighbours PW5-Subhash Atmaram Chendvankar, PW6- Mrs Ranjita Ramesh Sawant and PW7-Suresh Gopal Mallhar came to the spot and the victim reported them that the accused set her on fire after pouring kerosene. PW5-Subhash went to the house of PW4-Vasant alongwith DW-Nagesh Sawant and informed about the incident. PW4-Vasant and PW8-Mangal came to the 4

house of accused. During that time victim reported that the accused poured kerosene upon her body and set her on fire.

5. The victim was removed to the Rural Hospital Devgad by jeep. PW10-Dr.Mangesh Hindalekar attached to the said hospital treated the victim. By letter dated May 7, 2001 at Exh.27 he informed Devgad Police Station and advised to take the victim to Civil Hospital at Oros. Victim was removed in the hospital of PW12-Dr.Pravin Jayawant Birmole where he treated the victim. At that time victim reported to Dr.Pravin that her husband, accused herein, burnt her. As per his advice, victim was shifted to Mumbai for treatment.

6. It is the further case of the prosecution that on May 8, 2001, victim was admitted to Masina Hospital situate at Byculla, Mumbai. PW14-Dr.Mukhtar Isak Dhanse admitted her in the said hosipital. At that time victim reported to him that her husband burnt her by pouring kerosene upon her body and setting her on fire. In view of this information he reported the matter to Byculla Police Station. Accordingly, PW11-PSI Mr.Chandrakant More attached to Byculla Police Station at the relevant time came to the said hospital and recorded statement of the victim 5

on May 8, 2001 at Exh.31. Both hands and fingers of the victim were burnt, and as such she could not sign upon it. PW14- Dr.Mukhtar made endorsement to the effect that the patient, victim herein cannot sign because of burn to both hands. On the basis of the statement at Exh.31, PW11 Mr.More recorded the same under “0” Number and sent it to Devgad Police Station. After receipt of this, PW16-Mohan Bane, PSI at the relevant time at Devgad Police Station, registered the offence on the basis of Exh.31. Spot panchanama was drawn by PW9-Mohan Tarapure, ASI at Exh.15. It is the case of the prosecution that PW15-Ram Shridhar Sawant, Special Executive Officer recorded the dying declaration of the victim on May 9, 2001. On May 29, 2001 the victim succumbed to her burn injuries in Masina Hospital at Byculla. PW17-Dr.Sunil Shankar Kadam carried out post mortem of the dead body of the victim and prepared report, which is at Exh.65. From the scene of offence, PW9 – Tarapure seized one plastic can containing half liter kerosene and one long hair found upon the cap of the said can, burnt clothes namely gown, bracier, pettycoat, upon which one long hair was found, so also twelve pieces of broken bangles and match box. On 6

May 16, 2001 PW16-Mohan, PSI attached to Devgad Police Station, during the course of investigation arrested the accused and seized the clothes under panchanama at Exh.17, and also recorded the statement of the witnesses. On May 29, 2001 he came to know that the victim died and hence he substituted the offence and registered it u/s.302 IPC. He addressed a letter to Tahasildar to draw the map and accordingly, Circle Inspector PW13-Gosavi prepared the map of scene of occurance at Exh.35. PW16-Mohand Bane sent the property to the office of Chemical Analyser on June 15, 2001. The Chemical Analyser’s reports are produced at Exh.52 & 53. After completion of the investigation, PW16-Mohan Bane submitted the chargesheet in the Court of learned Judicial Magistrate First Class, Devgad. The learned JMFC, Devgad, after noticing that the offence is exclusively triable by the Court of Sessions, committed the case into the Court of Sessions. After committal of the case into the Court of Sessions, the charge at Exh.4 was framed against the accused for the offence punishable u/s.302 and 498A IPC. The charges were read over and exaplained to the Accused in Marathi. Accused pleaded not guilty and claimed to be tried.

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7. In support of the case of the prosecution, the prosecution examined 17 witnesses who can broadly be classified as under:- PANCH WITNESSES:

PW1-Vilas Jagannath Soman at Exhibit 14 to prove the spot panchanama dated May 9, 2001 at Exh.15,

PW2-Mangesh Dhondu Dhuri at Exh.16 & PW3-Lawoo Vitthal Mirashi at Exh.18 to prove seizure panchanama at Exh.17. RELATIVES:

PW4-Vasant Rajaram Parab, father of the victim at Exh.19 and PW8-Mangal Santosh Sutar, sister of the victim at Exh.23. NEIGHBOURS:

PW5-Subhash Atmaram Chandwadkar at Exh.20, PW6-Mrs Ranjita Ramesh Sawant at Exh.21, PW7-Suresh Gopal Mallhar at Exh.22 to prove oral dying declarations made by the victim. 8

MEDICAL EVIDENCE:

PW10-Dr.Mangesh Motiram Hindalekar, Medical Officer attached to Rural Hospital, Devgad at Exh.26, who gave letter dated May 7, 2001 at Exh.27,

PW12-Dr.Pravin Jayawant Birmole, Medical Practitioner attached to Gurukripa Hospital, Kankawali at Exh.32,

PW14-Dr.Mukhtar Isak Dhanse, RMO attached to Masina Hospital at Exh.38, who made endorsement on the dying declaration at Exh.31 and prepared inquest letter at Exh.39,

PW17-Dr.Sunil Shankar Kadam at Exh.64, who carried out post mortem on the dead body of the victim and prepared the report at Exh.65.

INVESTIGATING OFFICERS:

PW9-Manohar Yashwant Tarapure, ASI, at Exh.24 who recovered articles and prepared panchanama at Exh.15.

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PW11-Chandrakant Jayaram More, PSI attached to Byculla Police Station at Exh.30, who recorded statement made by the victim on May 8, 2001 at Exh.31; and

PW16-Mohan Balwant Mane, PSI attached to Devgad Police Station at Exh.50, who submitted the articles for chemical analysis, reports whereof are at Exh.52 & 53.

In addition to the above witnesses, the prosecution examined Mr.Sadanand Vithoba Gosavi, Circle Inspector as PW13 at Exh.34 who prepared map at Exh.35. The prosecution also examined Mr.Ram Shridhar Sawant, Special Executive Officer as PW15 at Exh.45 who recorded dying declaration of the victim on May 9, 2001, which is at Exh.46.

8. On the basis of evidence on record, learned Sessions Judge by impugned judgment and order, as set out earlier, acquitted the accused for the offence punishable u/s.498A IPC and convicted him for the offence punishable u/s.302 IPC and sentenced him to suffer R.I.for life and to pay a fine of Rs.500/- I/d.to suffer R.I.for 15 days. It is against this judgment and order the 10

present appeal is preferred.

9. In support of this appeal, we have heard Mr.Ganesh Gole, learned counsel for the appellant – original accused, and Smt.V.R.Bhosale, learned APP on behalf of the State. Mr.Gole, learned counsel for the appellant strenuously submitted that the consistent case of the prosecution witnesses is that the alleged incident took place in the presence of two sons viz.Nachiket and Nimish of the Accused. The police neither recorded their statements nor the prosecution examined them to substantiate its case. He submitted that when the direct evidence in the shape of testimony of children was available, it was the bounden duty of the prosecution to examine these witnesses. The prosecution on its own, cannot determine and decide whether the children are fit to depose in the Court, and it is for the Court to decide their capacity. He therefore submitted that the prosecution case rests upon the verbal and written dying declarations. These dying declarations cannot be taken into consideration when firstly, the direct evidence was available and secondly, even otherwise the dying declarations are not properly recorded. Elaborating his submission, Mr.Gole contended 11

that perusal of the dying declarations would indicate that the concerned Doctor did not make any endorsement about the mental fitness of the victim to make the statement. He submitted that it is a mandatory requirement and failure to make endorsement will enure to the benefit of the accused. He submitted that in such circumstances, the benefit of doubt has to be given to the accused. In support of these submissions Mr.Gole relied upon the following decisions:-

1) Sunil Kashinath Raimale V/s.State of Maharashtra – 2006 All M.R.(CRI) 1117 and in particular paragraph 11 thereof, and

2) Dadu Genu More V/s.State of Maharashtra – 2007 All M.R. (CRI) 1078.

Relying upon the aforesaid decisions Mr.Gole, submitted that at the time of recording dying declaration Doctor has to remain present throughout; Doctor has to give certificate about the mental condition of the victim. He therefore submitted that the 12

dying declarations cannot be taken into account as they are not recorded in accordance with law by following the mandatory procedure.

10. In so far as oral evidence of the witnesses is concerned, Mr.Gole, learned counsel for the accused submitted that PW4-Vasant, PW5-Subhash, PW6-Mrs.Ranjita, PW7-Suresh and PW8-Mangal did not depose that the accused was present in the house at the time of incident. In so far as testimony of PW7-Suresh is concerned, Mr.Gole submitted that in the examination in chief he made improvement when he deposed “at that time I saw that the accused was beating Deepika by stick and by legs.” Inviting our attention to this portion, Mr.Gole submitted that PW4, PW5, PW6 and PW8 did not depose this aspect. According to him, in the cross-examination PW7 admitted that when he went to the house of the accused at that time victim was not speaking and he found that the victim was unconscious. In view of this the victim could not have told PW5, PW6 and PW8 that the accused poured kerosene on her body and thereafter set her on fire. The verbal dying declaration purportedly made by the victim before PW5, PW6 and PW8 is liable to be discarded. 13

Mr.Gole further submitted that PW7-Suresh admitted that the father of the victim Vasant is his relative and therefore according to him PW7-Suresh is interested witness.

11. In so far as testimony of PW8-Mangal is concerned, Mr.Gole submitted that her husband is worker of Shivsena and PW15- Ram Shridhar Sawant, Special Executive Officer who recorded the alleged dying declaration of the victim at Exh.46 belongs to Shivsena and was elected as Coucillor of the Mumbai Municipal Corporation at the relevant time. He therefore urged that the evidence of both these witnesses requires to be discarded. In so far as testimony of PW11-Mr.Chandrakant More, PSI attached to Byculla Police Station is concerned, he submitted that he claims to have recorded dying declaration of the victim on May 8, 2001 at Exh.31. However, he had not taken endorsement of the Doctor upon the said statement to the effect that the victim was in a position to give statement. He further criticised dying declaration at Exh.31 on the ground that it does not bear signature or thumb impression of the victim and that the possibility of tutoring the victim on account of presence of the relatives of the victim viz.PW4-Vasant and PW8-Mangal cannot be ruled out. 14

He therefore submitted that the evidence of PW11-Chandrakant More as also the alleged dying declaration at Exh.31 deserves to be discarded. In so far as testimony of PW14 Dr.Mukhtar is concerned, he submitted that after the victim was admitted in Masina Hospital at Byculla, he had given injection tramadol and it is in the group of synthetic glass and diazapam. The same medicine was continued on May 9, 2001 to the victim. Creative drug can produce undesirable degree of mental confusion in burn patient because ceratives affect the nervous system. Due to burns tongue and lungs are affected and the speech become blurred and sort of stammering. In view of this Mr.Gole submitted that since the victim was under medication, she was not in a position to speak. Consequently, the alleged dying declaration recorded by PW15-Mr.Ram Sawant at Exh.46 is wholly unreliable and is liable to be discarded.

12. Mr.Gole, learned counsel for the accused submitted that PW7- Suresh specifically deposed that when he went to the house of accused he found that the victim was unconscious and was not in a position to speak. PW10-Dr.Motiram Hindalekar deposed that the victim sustained burn injuries to the extent of 60% and 15

her condition was ctitical and she was not in a position to speak. He issued a letter to Devgad Police Station to the effect that the victim was not in a condition to give statement. Victim was brought to the hospital at 11.30 p.m on May 6, 2001 and the incident is alleged to have taken place at 8 p.m.on May 6, 2001. Considering the evidence of PW7 and PW10 as regards the condition of the victim, he submitted that the theory of verbal dying declaration propounded by PW5-Subhash, PW6-Ranjita and PW8-Mangal is wholly unreliable and is liable to be discarded.

13. In so far as testimony of PW12-Dr.Pravin Jayawant Birmole is concerned, Mr.Gole submitted that the victim was admitted in Gurukripa Hospital at 2.15 a.m on May 7, 2001. He claims to have examined her and found that the injuries on the body of the victim could be caused by pouring kerosene upon her and setting fire to her body. Though he claims that the history of injury was reported by victim herein to the effect that her husband burnt her, considering the testimony of PW7-Suresh and PW10-Dr.Mangesh, the deposition of PW12-Dr.Pravin is wholly unreliable and is liable to be discarded. Whereas PW7-Suresh deposed that the victim was unconscious and was not in a 16

position to speak on May 6, 2001 after the alleged incident as also PW10-Dr.Mangesh examined the victim at 11.30 p.m on May 6, 2001 and also found that the condition of the victim was critical and the victim was not in a position to speak, however, PW12-Dr.Pravin deposed that at 2.15 a.m on May 7, 2001 the victim reported history that her husband burnt her. In this state of affairs, Mr.Gole submitted that the evidence of PW12-Dr.Pravin does not inspire confidence and is liable to be discarded.

14. As far as testimony of PW15-Ram Sawant, Special Executive Officer is concerned, Mr.Gole submitted that PW15 Ram Sawant at the relevant time was elected member in Mumbai Municipal Corporation in February, 1997. He was a member of Shivsena Party and husband of PW8-Mangal was a worker of Shivsena Party and he therefore deposed in support of the prosecution case. He further submitted that in examination in chief he deposed that he recorded dying declaration of the victim on May 9, 2001. The medical officer informed him that the victim is conscious and is in a position to give statement. In his presence the victim put her right hand thumb impression. As also in his presence the Doctor made endorsement upon it and 17

also signed upon it. The right hand thumb impression of the victim was taken because her left hand was heavily burnt and the same was in bandage. However, during the cross- examination he admitted that he had not made any inquiry about the identity of the Doctor who had made endorsement on the statement of the victim at Exh.46. He further admitted that it is necessary to obtain endorsement from the medical officer to the effect that the patient was conscious during the statement. However no such endorsement was obtained by him at Exh.46. He further admitted that in his presence the Doctor did not make the endorsement appearing on the foot of the statement at Exh.46. He also admitted that he did not put endorsement to the effect that the contents of the statement at Exh.46 were read over to the victim and she acknowledged the correctness thereof. He therefore submitted that the so-called dying declaration at Exh.46 is not recorded by following the mandatory procedure and in accordance with law. In view of this position, the testimony of PW15-Ram as also the dying declaration at Exh.46 are liable to be discarded.

15. In so far as testimony of PW2-Mangesh Dhondu Dhuri and PW3- 18

Lawoo Vitthal Mirashi is concerned, he submitted that they were panch-witnesses to seizure panchanama at Exh.17. Both the witnesses turned hostile and did not support the prosecution. The prosecution has not proved seizure panchanama at Exh.17, under which the clothes of the accused were attached. He therefore submitted that the accused is entitled to the benefit of doubt and the order of conviction & sentence deserves to be set aside. Finally Mr.Gole invited our attention to the evidence of defence witness Mr.Nagesh Laxman Sawant at Exh.76 as also the defence statement tendered by the accused.

16. On the other hand, Smt.V.R.Bhosale, learned APP submitted that the incident in question took place in the house of the accused. There is enough material on record to indicate that the accused was addicted to liquor. The map at Exh.35 drawn by PW13- Circle Inspector Mr.Sadanand Gosavi and the spot panchanama at Exh.15 clearly support the case of the prosecution that the death of the victim was homicidal and not accidental. She further submitted that in the presence of the accused the victim made a statement to PW5-Subhash, PW6-Ranjita and PW7- Suresh implicating her husband. A perusal of the testimony of 19

PW4-Vasant, PW5-Subhash, PW6-Ranjita and PW8-Mangal would indicate that the accused was very much present when the incident took place. Even after the incident, the conduct of the accused was that he did not do anything and did not take the victim to the hospital for medical treatment. This is clear pointer to the guilty mind of the accused. She further submitted that there is ample evidence on record to substantiate the case of the prosecution.

17. In so far as the argument advanced on the requirement of certification by Doctor on the dying declarations is concerned, she relied upon the judgment of the Constitutional Bench of the Apex Court in the case of Laxman V/s.State of Maharashtra, 2002 All M.R.(CRI) 2259 (S.C.) and in particular Head Notes A and C thereof.

18. As noted earlier the prosecution case rests on the verbal and written dying declarations. Mr.Gole submitted that the dying declarations are not recorded by following the mandatory provisions of law and as such, they are liable to be discarded. On the other hand Mrs.Bhosale, learned APP submitted that the dying declarations are properly recorded and the conviction & 20

sentence awarded by the learned Sessions Judge is required to be maintained. In order to appreciate the arguments advanced on behalf of the rival parties, let us consider the law relating to the dying declarations:

19. Section 32 of the Indian Evidence Act, 1872 in so far as it is relevant, reads as under:-

“Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant:- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death:- When the 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.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

20. The principle on which the dying declarations are admitted in evidence is indicated in legal maxim:

“Nemo moriturus praesumitur mentire” i.e. “a man will not meet his Maker with a lie in his mouth.”

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The truth sits on the lips of the dying man as said by Mathew Arnold:-

“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.

21. Declarations relating to the cause of death may be oral or written, and are, unlike admissions receivable either for or against the parties. The dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transactions which resulted in his death in cases in which the cause of his death comes in question, is relevant u/s.32 of the Indian Evidence Act as also admissible in evidence. Though the dying declaration is indirect evidence being the specie of hearsay, yet it is an exception to the rule 22

against admissibility of hearsay evidence. Indeed it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of the accused. But then, the question as to how much weight can be attached to the dying declaration is a question of fact and has to be determined on the facts of each case. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindicative or product of an imagination. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration, as the rule requiring corroboration is not a rule of law, but only the rule of prudence.

22. In the case of Laxman (supra) the Constitution Bench of the Apex Court in paragraph No.3 of the judgment observed as under:

“3. The juristic theory regarding acceptability of a dying declaration that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances 23

which may affect their truth. The situation in which a man is on death bed is so solemn and serene is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be 24

acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

23. In the light of the aforesaid legal provision, let us consider the evidence on record. It is the case of the prosecution that since morning of May 6, 2001, the accused was consuming liquor and was quarreling with the victim. At about 8.00 p.m accused quarreled with the victim and then poured kerosene on her body and thereafter by using match box set her on fire. The victim and her two sons started shouting and on hearing their shouts the neighbours PW5-Subhash alongwith DW Nagesh, PW6-Ranjita and PW7-Suresh came to the spot and the victim reported them that her husband set her on fire after pouring kerosene.

24. PW5-Subhash deposed that the house of the accused is adjoining to his house and that the accused was addicted to liquor. On many occasions he heard quarrels that used to take place between the victim and the accused. On May 6, 2001 at 8.00 p.m he was present in the house. He heard shouts of the sons of the accused uttering the words “burnt”. He went to the house of DW Nagesh Sawant, who is cousin of the accused. 25

He reported DW Nagesh that something happened in the house of the accused and thereafter he came to the house of the accused alongwith DW Nagesh. At that time he found that the victim was in a burnt condition and was uttering the words “he had burnt me”. He further deposed that when he came there, the victim reported that the accused poured kerosene upon her body and set her on fire. In the cross-examination he denied that he had not seen accused under the influence of liquor. He also denied that he never heard any quarrel between the accused and the victim. He further denied that he was deposing falsely about the accused had poured kerosene on the victim and set her on fire. He also denied that he was deposing falsely that at that time accused was not there, meaning thereby the accused was very much present when he went to the house of the accused. He denied that on account of boundary dispute between him and the accused he was deposing falsely against the accused.

25. PW6-Ranjita Sawant is the aunty of the accused. Her house is also situate near the house of the accused. She also deposed that on May 6, 2001 at about 8.00 p.m she was present in the 26

house and the sons of the accused and the victim shouted and so she rushed to the house of the accused. When she went in the house of the accused, she found victim in a burnt condition. She also deposed that before her arrival PW5-Subhash, DW- Nagesh Sawant had reached the spot. She asked victim as to what had happened, whereupon the victim replied that the quarrel took place between her and the accused, and the accused poured kerosene upon her body and set her on fire. Undoubtedly she made improvement to the effect that the accused rushed towards the PW7-Suresh to beat him by means of stick. She admitted that in the police statement she did not refer that the accused tried to beat PW7-Suresh by means of stick. In the cross-examination she admitted that the accused is her nephew. She however denied that there is any dispute between the accused and her husband over the land. She further denied that when she went to the house of the accused the victim was not in a position to speak. She further denied that the accused was not present in the house at that time.

26. PW4-Vasant deposed that on May 6, 2001 at about 8.30 p.m he was present in his house which is situate at Hindale. PW5- 27

Subhash and DW Nagesh Sawant came to his house and reported that the victim was burnt. He alongwith PW8, his married daughter came to the house of the accused and found that the victim was in a burnt condition. At that time victim reported him that the accused poured kerosene upon her body and set her on fire. At that time, victim was in a position to speak and after sometime the victim became unconscious. To a suggestion given to him he denied that while preparing a meal due to flame of stove the victim was burnt. PW8-Mangal also supported PW4-Vasant on all these points. Mr.Gole, learned Counsel for the accused strenuously contended that the victim was not in a position to speak as PW7-Suresh in his evidence clearly deposed that the victim was not in a position to speak and she was unconscious. He submitted that though the father of the victim viz.Vasant is his relative, still he had admitted that the victim was not in a position to speak and was unconscious, He further submitted that the testimony of PW4-Vasant, PW5- Subhash, PW6-Ranjita and PW8-Mangal is liable to be discarded and it ought to be held that since the victim was unconscious, she was not in a position to speak and consequently the case of 28

the prosecution that the victim gave verbal dying declaration cannot be accepted.

27. We are unable to accept this submission. PW4-Vasant deposed that after he came alongwith PW8-Mangal, the victim was in a position to speak and she reported the incident and thereafter she became unconscious. PW5-Subhash as also PW6-Ranjita and PW8-Mangal support this version. We find from their deposition that the victim reported the incident and therefore the verbal dying declaration is duly established by the prosecution. It is also relevant to note at this stage that PW5-Subhash was the first person to arrive at the scene of offence and we find nothing in his testimony to come to the conclusion that the victim did not make verbal dying declaration to him. It is also relevant to note here at this stage that the victim has two minor sons and considering their condition at the relevant time it is inconceivable that she will falsely implicate her husband. Their testimony inspires full confidence and is disclosing the true and correct events. It is also relevant to note at this stage that when PW5-Subhash came to the spot, neither PW4-Vasant nor PW8-Mangal was present. Thus the statement of the victim 29

was not the result of either tutoring or prompting by her relatives. Since immediately after incident she made a statement to PW5-Subhash, we are of the opinion that the victim was in a fit state of mind and had an opportunity to identify the accused. The submission made by Mr.Gole that none of the witnesses deposed the presence of the accused is wholly without substance and is contrary to record. During the cross- examination these witnesses clearly denied that the accused was not present in the house. So the presence of the accused at the time of the incident is also duly established by these witnesses.

28. As far as dying declaration at Exh.31 is concerned, the same was recorded by PW11-Chandrakant Jayawant More, PSI attached to Byculla Police Station. He deposed that on May 8, 2001 while he was working as PSI he received a letter from Masina Hospital, Byculla, informing that the victim was admitted in that hospital with burn injuries and the police should take suitable action. When he went to the hospital the relatives of the victim were present. The victim was conscious and was in a position to give statement. In the presence of Doctor he recorded a statement of the victim as per her version and the Doctor made endorsement 30

upon it to the effect that the patient cannot sign due to burn of both hands and the Doctor signed upon it. He explained the contents of her statement and the victim acknowledged their correctness. He as well as the Doctor made signatures on the statement. In the cross-examination he admitted that he had not taken endorsement of the Doctor upon the statement to the effect that the victim was in a position to give statement. He denied that the victim was not in a position to speak and he had prepared the statement at the instance of PW8-Mangal. A perusal of the dying declaration recorded by PW9 which is at Exh.31 clearly supports the case of the prosecution as to the manner in which the incident took place. PW14-Dr.Mukhtar made an endorsement to the effect the patient cannot sign because of burns of both hands. Mr.Gole, learned Counsel for the accused submitted that since the statement at Exh.31 does not bear signature or thumb impression of the victim, the same cannot be relied upon. He submitted that the Doctor did not make endorsement to the effect that the victim was in a position to give statement. He submitted that the statement at Exh.31 was recorded by the police officer and not by the 31

Magistrate and therefore cannot be relied upon. We are unable to accept this submission in the light of the judgment of the Apex Court in the case of Laxman (supra). As observed by the Apex Court in most of the cases, such statements are made orally before the death ensues and are reduced to writing by someone like Magistrate or Doctor or Police Officer. When it is recorded, no oath is necessary, nor the presence of the Magistrate is absolutely necessary, although to assure authenticity it is usual to call the Magistrate if available for recording the statement of the man about to die. There is no requirement of law that the dying declaration must necessarily be made to a Magistrate. What is essentially required is that the person who records the dying declaration must be satisfied that the deceased was in a fit state of mind. From the testimony of PW9 it is proved that the victim was in a fit state of mind to make a statement. From the perusal of the statement at Exh.31, coupled with the testimony of PW4-Vasant, PW5-Subhash, PW6- Ranjita and PW8-Mangal we find that the said statement is voluntary and truthful. The submission that no endorsement is made by the Doctor about the condition of the victim that she 32

was in a position to give statement, in the facts and circumstances of the case, is without any substance. A certification by the Doctor is essentially the rule of caution, and the voluntary and truthful nature of declaration can be established otherwise.

29. Mr.Gole, learned counsel for the accused submitted that PW10- Doctor Motiram Hindalekar, Medical Officer attached to the Rural Hospital at Devgad deposed that on May 6, 2001 at 11.30 p.m the victim was brought in his hospital. He found that she had sustained 60% burn injuries and her condition was critical. The victim was not in a position to speak and accordingly to that effect he issued a letter to Devgad Police Station. He therefore submitted that since the incident alleged to have taken place at 8.00 p.m and the Doctor examined her at 11.30 p.m no credence to the testimony of PW4-Vasant, PW5-Subhash, PW6- Ranjita and PW8-Mangal can be attached. We are unable to accept this submission. As observed earlier, PW5-Subhash clearly deposed about the statement given by the victim and he was the first person to arrive at the scene of offence. Even PW4- Vasant deposed that the victim reported the incident and 33

thereafter she became unconscious. We do not find any inconsistency between the testimony of PW4-Vasant, PW5- Subhash, PW6-Ranjita, PW8-Mangal and PW11-Doctor Motiram.

30. PW12-Doctor Pravin Birmole deposed that at 2.15 a.m on May 7, 2001, the victim was admitted in his hospital. He examined her and he specifically deposed that the history of injury was reported to him by the victim herself. In the cross-examination he denied that the victim was not in a position to speak. He issued a certificate at Exh.33 wherein it is set out that at the time of admission of the victim, she was conscious and was in a state of mind to give statement. She had alleged history of being burnt by her husband. His evidence inspires confidence as he has no animosity towards the accused or he has no reason to falsely implicate the accused. PW12-Doctor Pravin Birmole cannot be said to be an interested witness at all.

31. Mr.Gole, learned Counsel for the accused submitted that the evidence of PW14-Doctor Mukhtar indicates that the victim was under medication and consequently was not in a position to speak and therefore statement of the victim at Exh.31 is not an acceptable piece of evidence. PW14-Doctor Mukhtar deposed that 34

on May 8, 2001 he had examined the victim. He had found that the victim was conscious. The victim told him that her husband burnt her by pouring kerosene on her body and setting her on fire. He further deposed that in his presence PW11-PSI Mr.More recorded the statement of the victim and he had endorsed on that statement to the effect that the fingers of both hands of the victim were burnt and that she could neither sign nor put her thumb impression. PW14-Doctor Mukhtar had no animosity against the accused. There is no reason for PW14-Doctor Mukhtar to falsely implicate the accused. PW14-Doctor Mukhtar cannot be said to be an interested witness at all.

32. Mr.Gole, learned counsel for the accused submitted that PW15- Ram Sawant, Special Executive Officer deposed that he recorded dying declaration of the victim on May 9, 2001. He submitted that PW15 was elected as member of the Mumbai Municipal Corporation in February, 1997 as a Shivsena candidate. Since the husband of PW8-Mangal is a party worker of Shivsena and PW15-Ram Sawant also belongs to Shivsena party, PW15 supported the case of the prosecution.

33. A perusal of the evidence of PW15-Ram Sawant and the dying 35

declaration dated May 9, 2001 at Exh.46 indicates that PW15- Ram Sawant claims to have recorded statement of the victim in his hand writing and that in his presence the victim put her right hand thumb impression. He further deposed that in his presence, Doctor had made an endorsement upon it. However, in the cross-examination he admitted that in his presence Doctor did not make endorsement appearing at the footnote of the statement at Exh.46. Whereas, PW15-Ram Sawant claims to have recorded the dying declaration of the victim on May 9, 2001 and the Doctor made an endorsement in his presence, perusal of Exh.46 indicates that Doctor made an endorsement on May 15, 2001. Though PW15-Ram Sawant claims to have recorded dying declaration of the victim on May 9, 2001 and the Doctor made an endorsement in his presence, the endorsement bears date of May 15, 2001. PW14-Doctor Mukhtar made an endorsement below Exh.31 on May 8, 2001 to the effect that the victim could not sign because of burn of both hands. PW-15 claims that the victim had put right hand thumb impression on her dying declaration at Exh.46 on May 9, 2001. Even if we discard from consideration, the testimony of PW15-Ram Sawant 36

as also the dying declaration dated May 9, 2001 at Exh.46, there is ample evidence on record to indicate that the accused had poured kerosene on the victim and set her on fire. The defence tried to suggest that while the victim was cooking meal in kitchen, on account of flames of the stove she suffered burn injuries. The said submission is totally untenable in view of the spot panchanama at Exh.15 and the map drawn by the Circle Inspector at Exh.35. A perusal of these documents clearly show that in the first place, the incident did not take place in the kitchen and secondly, the stove was not at all there. There is one more aspect which requires to be considered that the accused and the victim have two sons Nachiket and Nimish who were minor children and the victim in such a condition of burn injuries will not falsely implicate her husband considering the future of her children. We therefore find no reason for disbelieving the verbal dying declarations made by the victim as also the dying declaration at Exh.31 recorded by PW11- Chandrakant More.

34. Mr.Gole, learned counsel for the appellant invited our attention to the judgment of this Court in the case of Sunil Kashinath 37

Raimale V/s.State of Maharashtra, 2006 All M.R.(CRI.) 1117, and submitted that the prosecution did not examine the children of the accused who were present at the time of incident. The dying declaration cannot be put at the same pedestal as direct account or eye-witness account of the incident. Non examination of the children who were present at the time of incident is clearly keeping away the direct evidence, and the reliance on comparatively inferior quality of evidence of dying declaration is not proper on the part of the prosecution. He further submitted that when the direct evidence in the shape of testimony of the children was available, it was the bounden duty of the prosecution to examine these witnesses. As the prosecution withheld the direct evidence, the accused is entitled to the benefit of doubt.

35. In the case of Sunil Kashinath Raimale (supra) the prosecution relied upon the evidence of PW4-Vijay Patil, Police Patil, Punkheda who claimed to have reached the location by accident and who claimed to have heard the victim Sarala accusing her husband of having set her on fire. He also claimed to have given intimation to that effect to the father of victim Sarala 38

viz.PW3-Vasant Thakade. On appreciation of evidence the Court disbelieved the testimony of PW4-Vijay Patil that he gave intimation to PW3-Vasant Thakane, father of the victim. This fact was also confirmed by the deposition of PW13-the Investigating Officer P.I.Mr.Deshmukh. In so far as PW4-Vijay Patil having heard the dying declaration is concerned, on appreciation of evidence this Court came to the conclusion that the subsequent conduct of PW4-Vijay Patil was so passive that the passive reaction made the claim further doubtful. The Court also disbelieved the dying declarations at Exh.23 and Exh.36. In that context, the Court observed in paragraph No.12 as follows: “The time of the incident was about 7 or 7.30 a.m.when ordinarily all the family members could have been present in the house. Even in the recorded dying declaration (Exh. 36) in response to question No.9 victim narrates that (Matter in vernacular omitted) i.e.children were at home. The ages of the children have come in the deposition of father of Sarlabai. They were aged 10, 7 and 5, respectively son, daughter and daughter. In the dying declaration (Exh. 23) one Sopan Koli (not PW6 but Sopan Vithal Koli, Sr.No.5 in the witness list) is named as the person, who extinguished the fire by using the Chaddar. PI Deshmukh admits in his cross examination that he has recorded statement of daughter of the deceased. This daughter or rather all the children were eye-witnesses to the incident. For the reasons best known to it, prosecution has elected to keep them away from the witness box. Although PSI denied the suggestion that the daughter of the deceased had narrated that at the time of incident, mother was 39

inside the house and father was outside, in view of the fact that daughter was not examined from the witness box, portion from her statement could not have been so confronted to investigative officer and prosecution cannot escape the adverse inference that is required to be drawn for non examination of either of the children and Sopan Vithal Koli, who were the witnesses present at the location at the time of occurence. The dying declaration cannot be put at the same pedestal as direct account or eye- witness account of the incident. If the two are to be compared, the eye witness account must stand on a highter footing. The prosecution, by not examining any of the three children and Sopan Vithal Koli, has clearly kept away the direct evidence and relied upon comparatively inferior quality of evidence. We feel that failure on the part of the prosecution to bring these pieces of evidence referred in this paragraph also strikes against credibility of the recorded dying declarations.”

36. Mrs.Bhosale, learned APP submitted that considering the age of the children, the police did not record their statements. She further submitted that the children are susceptible to be swayed by what others tell them and thus the child witness is an easy pray to tutoring. She relied upon the judgment of the Apex Court in the case of Panchhi V/s.State of U.P., AIR 1998 S.C.2626. From the evidence on record it is clear that the incident took place in the presence of two minor sons Nachiket and Nimish who were at the relevant time 7 & 5 years of old respectively.

37. So far as non-examination of the children is concerned, in view 40

of tender aged children having witnessed the incident in question, they will not be in a position to narrate the incident as they would be scared and horrified by witnessing the incident. In a given case, if the child witness is not examined, it will not be fatal to the prosecutions case in view of other clinching evidence on record.

38. Considering the state of mind of the children on account of the incident in question it cannot be expected that the police will record their statement and the prosecution would examine them in support of its case. As observed earlier, considering the law on the aspect of dying declaration, if they are voluntary, truthful and not the outcome of tutoring, the conviction can be based solely upon the dying declarations. We have already observed that in the instant case that the witnesses have been consistent in deposing the verbal declaration made by the victim as also the written declaration at Exh.31 is consistent with the theory propounded by the prosecution. In view of this, the reliance placed by the learned counsel on the judgment in the case of Raimale (supra) is of no assistance.

39. Mr.Gole, learned counsel for the appellant relied upon the 41

judgment of the Apex Court in the case of Laxmi V/s.Om Prakash, AIR 2001 SC 2383 and in particular paragraph Nos.28 and 29 thereof. He submitted that the victim was not in a fit state of mind and capable of making a statement. From the evidence on record, we have already indicated that the verbal dying declarations as well as written dying declaration at Exh.31 have been duly proved by the prosecution and that the victim was in a fit state of mind as also was capable of making a statement. Mr.Gole also relied upon the judgment in the case of Dadu Genu More V/s.State of Maharashtra, 2007 ALL M.R. (Cri.) 1078, and submitted that it is a mandate of law that the person recording dying declaration should obtain certificate from the Doctor about the ability and fitness of the patient to give the dying declaration. We are unable to accept this submission in view of the judgment of the Constitution Bench of the Apex Court in the case of Laxman (supra).

40. In so far as the conduct of the accused after the incident is concerned, the normal conduct of the husband would be to take the wife to the hospital and take care when the wife meets with an accident. The first step, in such circumstances the 42

husband would take is that, he would move the wife to the hospital. In the instant case, however, the accused husband did not move the victim to the hospital. The conduct of the accused is highly suspicious.

41. In the result, we find that the learned Sessions Judge has rightly convicted the accused and sentenced him to suffer life imprisonment. We do not find any ground to take a different view in the matter. Appeal is accordingly dismissed. (R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)

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