Bombay High Court Eknath S/O Bhagwan Hatkar-vs-The State Of Maharashtra on 13 August, 2010
Bench: S.B. Deshmukh, S. S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 733 OF 2008
Eknath s/o Bhagwan Hatkar
age 31 years, Occ. shepherd
r/o Umrade, Tq. Erandol
Dist. Jalgaon. (presently in jail) … Appellant Versus
The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court at Bombay
Bench at Aurangabad) .. Respondent …..
Mr. C.V. Dharurkar, advocate for the appellant
Mr. V.D. Godbharle, A.P.P. for respondent
CORAM: S.B. DESHMUKH &
S.S. SHINDE, JJ.
DATE OF RESERVATION
OF JUDGMENT : 12.08.2010
DATE OF PRONOUNCEMENT
OF JUDGMENT : 13.08.2010
JUDGMENT (PER SHINDE, J.)
1 This appeal is filed challenging the final judgment and order dated 16-10-2008 passed by the Additional Sessions Judge, Jalgaon in 2
Sessions Case No. 199 of 2007, whereby the appellant / accused is convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.3,000/- i/d to suffer rigorous imprisonment for one year. The accused is also convicted for the offence punishable under section 498-A of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- i/d to undergo further rigorous imprisonment for six months.
2 The factual matrix of the prosecution case is as under : . Deceased Anita Eknath Hatkar was the wife of accused Eknath. Their marriage was performed before 10 to 12 years ago. Anita Hatkar used to do labour work and was maintaining herself. Accused Eknath was suspecting chastity of his wife. He was not allowing victim Anita to go for labour work. Anita was constrained to do labour work due to poor financial condition. She used to go to field for labour work irrespective objection of her husband. On 13-8-2007 she went to field at 10.30 a.m. for labour work. At the time of her departure, accused asked her as to why she was going to labour work in field when he refused for the same. In spite of obstruction of accused, Anita went to field. She came back to 3
home at evening hours. After taking meals, she went to bed. Her mother-in-law and father-in-law slept outside the house on plinth. Her husband and children were at house. At about 10.00 to 10.30 p.m. Anita was in semi-sleep. At that time accused Eknath poured kerosene on the person of his wife Anita from a can, ignited matchstick and set her on fire. Anita sustained burns and she was having pains. She came out of room and started shouting. Outer door of the house was closed. She tried to remove the latch. The accused pushed her and abused her. Somehow Anita came out and called her neighbours for help. Her parents-in-law and the neighbours extinguished fire. They took her at hospital for treatment.
. PSI of Jilha Peth, Police Station, Jalgaon recorded statement of Anita when she was conscious. Statement of Anita Hatkar recorded by PSI Jilha Peth, Police Station is treated as FIR. The offence was registered at Erandol Police Station as per crime No. 66/2007 for the offence punishable under section 307, 498A of IPC. PSI Mahajan arrested the accused. During spot panchnama one plastic can, matchbox, half burnt matchstick, half burnt clothes lying on the spot were seized. Soil mixed with kerosene and simple soil from the spot of incident were seized. Anita died during medical treatment. Offence 4
under section 302 of IPC was added in crime. Inquest panchnama of the dead body was prepared. Dead body was sent for autopsy. Seized articles were sent to C.A. for chemical analysis. C.A. report was obtained.
. During investigation it was revealed that the accused committed murder of his wife for unlawful demand of Rs.50,000/-. He used to suspect chastity of his wife. He was not allowing her to go out for field work. Ultimately, he committed murder of his wife by setting her on fire. After doing needful investigation charge sheet was filed against the accused before the court of JMFC, Erandol. Since the offence under Section 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to the Court of Sessions at Jalgaon vide Section 209 of Cr.P.C. Charges has been framed against the accused for the offence punishable under section 302 and 498-A Charges were read out and explained to the accused. He pleaded not guilty.
The learned Sessions Judge, after hearing the parties and after recording the evidence, has convicted the appellant-accused Eknath for the offence punishable under section 302 and sentenced to suffer 5
imprisonment for life and to pay a fine of Rs.3,000/- i/d to suffer rigorous imprisonment for one year. The accused is also convicted for the offence punishable under section 498-A of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- i/d to undergo further rigorous imprisonment for six months. 3 Learned counsel appearing for the appellant submitted that if both the dying declarations which are at Exh.17 and 19 are perused carefully, there are contradictions in it. It is submitted that in the dying declaration recorded by Executive Magistrate, Sahebrao Ramchandra Patil, PW 2 the name of children are missing. However, the name of children are mentioned in the dying declaration at Exh.19 recorded by PW 3. It is submitted that in dying declaration at Exh.17 recorded by Executive Magistrate, it is stated “she was in sleep in between 20 to 21 hours”. However, in another dying declaration at Exh.19, she stated the time at about 10 p.m. To 10.30 p.m. According to the counsel for the appellant, the time of incident as stated in the dying declarations are different and therefore, there are contradictions in both the dying declarations. Learned counsel further submitted that before the Executive Magistrate Anita stated that there was no quarrel in between herself and accused soon before the incident and only the appellant-husband and herself 6
were in the house. However, it another dying declaration at Exh.19 she stated that in the morning on the date of incident, the husband told her not to go for work outside, however, she left for work and that was the reason the accused got annoyed. Counsel appearing for the appellant would further submit that deceased Anita had not whispered about suspicion raised by the accused in her dying declaration at Exh.17. However, she has stated in dying declaration at Exh.19 that the husband used to raise suspicion about her character and therefore, he burnt her. Learned counsel submitted that since there are material contradictions between two dying declarations and therefore dying declarations cannot form basis to sustain the conviction of the appellant. It is further submitted that there is possibility of tutoring to the deceased Anita by his brother before dying declaration was recorded. It is further submitted that so far as the offence under Section 498-A is concerned, the prosecution has only brought on record the evidence of PW 6 Samadhan and there is no corroboration to his evidence. It is further submitted that even the evidence of PW 6 is taken as it is, no offence can be constituted under Section 498-A of IPC against the appellant- accused. Therefore, learned counsel would submit that the appellant accused deserves to be acquitted under Section 498-A and Section 302 of IPC. Learned counsel further invited our attention to the evidence of 7
prosecution witnesses and also the judgment of this Court in the case of State of Maharahstra Vs. Manohar Mukindrao Tayade (Criminal appeal No. 139 of 1993 decided on 20.10.2004) and submitted hat since Anita sustained 98% burn injuries, she was not in a fit condition to give dying declaration. Therefore, both the dying declarations are required to be discarded. Learned counsel further invited our attention to the grounds taken in the appeal and also the arguments advanced before the trial court and submitted that the impugned judgment and order of the trial court deserves to be set aside and appellant-accused deserves to be acquitted.
4 Learned A.P.P. on the other hand submitted that the prosecution has proved its case beyond reasonable doubt. The prosecution has proved two written dying declarations and one oral dying declaration by examining the prosecution witnesses. Evidence of Inspector who recorded dying declaration and also evidence of Executive Magistrate and Medical Officer, PW 5 is consistent. Both the dying declarations have been proved by the prosecution through prosecution witnesses PW 2 to PW 6 and panch witnesses. It is submitted submitted that accused-appellant has not offered any explanation under what circumstances Anita sustained burn injuries. He further submitted that it 8
is not requirement of law that certain questions should be put to the victim by Medical Officer before dying declaration is recorded. Medical Officer had given endorsement on both the dying declaration about fitness and consciousness and state of mind of victim Anita and thereafter both the dying declarations came to be recorded. Learned A.P.P. In support of his contention placed reliance on the reported judgment of the Supreme Court in the case of Shersingh and another Vs. State of Punjab, reported in 2008 AIR SCW 1437 and more particularly para 13 and 14 of the said judgment. The sum and substance of the argument of learned A.P.P. is that the dying declarations are consistent. The spot of incident is not disputed by the appellant-accused. The spot of incident in the present case is the house of the appellant-accused. The incident took place during the night time. The appellant has not offered any explanation and therefore, the prosecution case has been rightly accepted by the trial court. It is further submitted that there was no provocation to the incident and the accused appellant has cold bloodedly poured kerosene on the person of deceased Anita and set her on fire when she was asleep. Learned A.P.P. also invited our attention to the cross examination of the Medical Officer and submitted that the Medical Officer has specifically stated in his cross examination that though 98% burns injuries were sustained by 9
Anita, still she was in a position to talk. Learned A.P.P. invited our attention to the entire evidence brought on record and submitted that the trial court has rightly convicted the appellant-accused. Therefore, he prayed for rejection of the appeal.
5 With the assistance of the learned counsel appearing for the appellant and the learned A.P.P. for the respondent-State, we have seen entire evidence brought on record. The time of incident is 13.8.2007. The incident is occurred at the night time. The prosecution has examined in all eight witnesses. The evidence of P.W.1 Sanjay Babulal Patil is at Exh.12. The said witness is panch witness to the spot panchnama. IN his examination in chief, he has stated that one matchbox and half burnt matchstick was lying on the spot. Pieces of half burnt clothes were also lying there. Police prepared panchnama on spot. Said panchnama is on record. It bears his signature. Its contents are true. It is at Exh.13. This witness in the cross examination has specifically stated that , ‘it is not correct to say that I did not see anything on spot and signed the panchnama on say of the police.” Therefore, this witness has supported the prosecution in establishing the spot panchnama and recovery of kerosene can, match box and half burnt matchstick and pieces of half burnt clothes.
6 P.W.2 Sahebrao Ramchandra Patil is examined by the prosecution and his evidence is at Exh.15. This witness has stated in his examination in chief that he is working as Executive Magistrate, Jalgaon from last four years prior to giving evidence before the Court. On 14.8.2007 he was at his house when one PI Mahajan came to his house. He told him that one Anita Hatkar sustained burn injury and she was admitted in civil hospital, Jalgaon and he requested this witness to record her dying declaration. He has also handed over a letter to that effect. This witness has also stated before the Court that he has brought original letter with him. He has further stated that dying declaration of Anita Hatkar is in sealed condition (it is opened before the court). Letter of PSI is in his name, it bears signature of PSI Mahajan, it bears his endorsement. The said letter is at Exh.16.
After receipt of letter from PI Mahajan, he went to the Civil Hospital, Jalgaon. He met Medical Officer. He told to doctor that he wanted to record dying declaration of Anita Hatkar. Alongwith the doctor he went to burn ward, where the said patient was admitted. He asked the doctor whether Anita was conscious and is in a position to give her statement. Medical Officer examined the patient. Medical Officer found 11
that Anita was conscious and was in a position to give statement. He gave endorsement in writing. This witness has further stated that he put certain elementary questions to the patient. This witness has also stated that he verified that the patient was conscious and in a position to give statement and then only he proceeded to record her dying declaration. Victim Anita stated before him that on 13.8.2007, during night hours her husband Eknath Hatkar poured kerosene on her person, ignited the matchstick and set her on fire. He recorded her statement as per her say. He read out statement to her and she admitted it to be true and correct and thereafter he obtained her thumb impression over it. Medical Officer was present there during the course of recording the dying declaration. Medical Officer again examined Anita and gave endorsement in writing. Before making endorsement, doctor examined the patient. This witness signed the statement of Anita. Dying declaration of Anita is on record. It bears his signature and thumb impression of deceased. The contents of the dying declaration is in his hand writing. Its contents are true and as per the say of Anita. The said dying declaration is at Exh.17. (Emphasis supplied) We have perused cross examination of this witness and on perusal we find that his statement in examination chief is not shattered 12
in cross examination. Defence has not brought anything on record to disbelieve the statement of this witness. This witness has denied the suggestion that he did not verify the condition of Anita. 7 P.W.3 Shantaram Dagadu Jagtap is examined by prosecution and his evidence is at Exh.18. This witness was working as PSI with Zilla Peth police station, Jalgaon. At the relevant time on 14.8.2007, he was on duty as PSO. There was wireless message at police station at 00.05 hours that Anita Hatkar was admitted in Civil Hospital due to burns and her statement should be recorded. This witness went to the Civil Hospital, Jalgaon for recording statement of Anita Hatkar. He met with Medical Officer. He asked him whether Anita Hatkar is in a position to make statement and whether she is conscious. Thereafter he went to burn ward. He saw Anita Hatkar. He recorded statement of Anita as per her say. She stated that her husband used to suspect her character and was not allowing her to go for labour work. On 13.8.2007, Anita went for labour work. She came back to house. She cooked food. She slept at house with children. Her husband was with her. She was under semi sleep. Her husband poured kerosene on her person from a can, ignited matchstick, set her on fire and ran away. This witness has further stated that Anita tried to extinguish the fire. She raised shouts. Her father-in- 13
law and other persons rushed there. They brought her at Civil Hospital, Jalgaon. This witness has specifically stated that statement of Anita was recorded as per her say. It was read over to her, she admitted it to be true. This witness has further stated that he obtained her thumb impression over it. He signed the said statement. Medical Officer has also given endorsement and said statement is on record at Exh.19. (Emphasis supplied)
In his cross examination this witness denied that Anita was not in a position to give thumb impression or to sign on the dying declaration. On careful perusal of the cross examination of this witness nothing substantial has been brought by the defence so as to disbelieve his statement in examination in chief.
8 PW 4 Gunwant Ramkrishna Bhole is examined by the prospection. The evidence of this witness is at Exh.22. This witness in his evidence stated that at the relevant time he was working as Medical Officer in Civil Hospital, Jalgaon. He stated that on 14.8.2007 he was on duty at Civil Hospital, Jalgaon as Medical Officer. On that day the dead body of Anita Eknath Hatkar was sent for autopsy. He conducted autopsy of dead body on 14.8.2007 between 11.05 a.m. till 12 noon. 14
During the post mortem he noticed internal and external injuries. He further stated that Anita had burnt 98%. This witness had found following first and second degree burns;-
i) Both superior extremities – 18%
ii) Both inferior extremities – 36%
iii) Back and buttocks – 18%
iv) Chest and abdomen – 16%
v) Head,neck and face – 9%
vi) Perineum – 1
This witness as stated that all injuries were ante mortem in nature. On internal examination he found that all organs were congested. Uterus non-gravid. She had bilateral ovarian cyst. Probable cause of death in his opinion was shock due to 98% burns. This witness has further stated that he issued post mortem report which is on record and it bears his signature. Its contents are true. The said post mortem report is at Exh.23.
In his cross examination,he has categorically stated about first degree burns means vessication i.e. Blisters. Third degree burns means burn of the muscle. In his cross examination he specifically stated that in 15
case of burns there is less oxygen to body but as the same time brain gets more oxygen because of congestion and therefore, consciousness is retained. He has further stated that due to burns certainly there is hormonal changes in body. Affection of pituitary glands, includes in hormonal changes, Pituitary glands control the mind indirectly. This witness has further stated that it is not correct to say that person having 98% burns cannot talk. (Emphasis supplied).
9 Medical Officer, Dr. Anita Ashok Jadhav, is examined by the prosecution as PW 5. Her evidence is at Exh.34. She is important witness in this case since the counsel for the appellant has argued that Anita had sustained 98% burns and therefore, she was not in a position to give statement.
This witness has stated that on 14.8.2007 she was on duty at Civil Hospital at Jalgaon as Medical Officer. On that day, patient Anita Eknath Hatkar was brought to hospital on stretcher. Anita Hatkar was burnt. Emergency treatment was started to her. Intimation was given to P.S.I. Jagtap of Zilha Peth, police station, Jalgaon about admission of Anita Hatkar in burn condition. Patient Anita was shifted to burn ward. PSI Jilha Peth police station, Jalgaon came to Civil Hospital, Jalgaon. He 16
wanted to record statement of Anita Hatkar. Being Medical Officer he came to her. This witness accompanied PSI to burn ward and pointed out patient to him. This witness examined Anita. PSI Jagtap asked her whether the patient is conscious and is in a position to give statement. This witness accompanied the Executive Magistrate at burn ward and pointed out the patient to him. This witness has specifically stated that the patient was again examined and found that she was conscious and well oriented and accordingly endorsement was given in writing. This witness has further stated that said endorsement is at Exh.17 which is in her hand writing and bears her signature. Its contents are true. After this endorsement the Executive Magistrate started writing statement of Anita. Throughout while recording statement of Anita, this witness was present there. At the end of recording statement again she had given her endorsement. According to this witness, Anita was conscious throughout recording her statement. Her second endorsement is at Exh.
17. It is in her handwriting. That bears her signature. The contents are true, which is at Exh.27.
In her cross examination, she has specifically stated that “it is not correct to say that I gave endorsement Exh.25,26,27 on say of the police in her chamber.”
We have carefully perused the examination in chief and also cross examination of this witness and we find that the evidence of this witness is not shattered in any way in the cross examination. 10 PW 6 Samadhan Gula Hatkar is examined by the prosecution. His evidence is at Exh.28. In his examination in chief he stated that deceased Anita is his sister. She delivered two sons. It is claimed by this witness that during his stay at her sister’s house, he noticed that accused used to beat his sister. After some days, the accused sent his sister back to parental house. The accused himself reached her to her house. His sister told that the accused used to play cards. He did not give money at house. He further stated that his sister told him that the accused used to demand money from his sister. Father-in-law of Anita came to take her back. He assured that the accused would not commit mistake. Therefore, this witness had sent Anita back with her father-in- law. This witness has further stated that Anita cohabited with the accused for two months. Again she was sent back after beating. His sister was at his house for one year. Mother-in-law of Anita came to take her back. Anita was sent back with her mother-in-law. The accused burnt his sister after eight days. At the time of incident, this witness was 18
staying at Jalgaon. He received information from one Rohidas Hatkar that his sister was burnt by the accused. He went to Civil Hospital, Jalgaon. His sister was admitted there. He made inquiry from his sister. His sister told him that the accused poured kerosene on her person, ignited the matchstick and set her a fire. This witness has further stated that his sister died due to burns. (Emphasis supplied). In his cross examination, he has specifically stated that the spot panchnama is not prepared in his presence. This witness has further stated that ‘it is not correct to say that one and half years ago, my sister attempted to set herself on fire by pouring kerosene. Witness volunteers; that the accused did said attempt. At that time myself or my sister did not file report against the accused. It is not correct to say that such an attempt was never made by the accused. It is not correct to say that due to death of my sister I am deposing falsely against the accused.’
Therefore, it appears from the evidence of this witness that oral dying declaration was made by Anita before him. The contents of the oral dying declaration made before this witness corroborated with two written dying declarations, which are recorded by PW 2 and PW 3. This 19
witness has also denied the suggestion that deceased Anita made attempt in the past to set herself on fire by pouring kerosene. On careful perusal of the evidence of this witness, this witness in examination in chief made some allegations against the accused about illtreatment to the deceased. However, on careful perusal of the examination in chief, we find that the allegations which are made against the accused so far as illtreatment is concerned, the same are not corroborated by any other evidence brought on record. Even allegations about illtreatment before the date of incident is taken in its entirety, in our opinion, it would not attract Section 498-A of IP.C. since the evidence of this witness so far it relates to constituting the offence under Section 498-A of IPC is concerned, the same are not corroborated by any other evidence, therefore, we are not inclined to maintain the impugned judgment and order of conviction in so far as the offence punishable under Section 498-A is concerned.
11 PW 7, Bhaskar Ramrao Dharale, is examined by the prosecution. His evidence is at Exh.29. In his examined in chief, he stated that on 2.9.2007, he was attached to Erandol police station. On that day, at the time of roll call at 8. p.m. he was directed by Presentee Master to carry 20
muddemal to C.A. said mudeedmal was pertaining to crime No. 66 of 2007. Muddemal clerk handed over one sealed bundle to him. Muddemal clerk gave letter for C.A. to him. On 3.9.2007, he reached to Nashik. He handed over sealed bundle to C.A. He also handed over letter to him. He obtained acknowledgment from C.A. on office copy of letter. Said letter is on record. It bears signature of PSI, police station, Erandol and acknowledgment of C.A. Its contents are true. Letter is at Exh.30. It reveals from the evidence of this witness that muddemal articles were carried by this witness to C.A.
12 PW 8, Sudam Shenfadu Mahajan, is examined by the prosecution. His evidence is at Exh.33. At the relevant time, this witness attached to Erandol police station as a PSI. On that day, PSO received an intimation on telephone that Anita was burnt and she was admitted at Civil Hospital, Jalgaon for treatment. He went to Civil Hospital, Jalgaon. Prior to that he informed the police of Zilla Peth police station to record the statement of Anita by going to civil hospital at Jalgaon. When he sent to Civil Hospital, statement of Anita was recorded by PSI Jagtap. On enquiry, he found that statement of Anita was not recorded by Magistrate and therefore, he issued letter to Executive Magistrate to record statement of Anita. This witness has stated that said letter is on 21
record, which bears his signature and also endorsement of Executive Magistrate in token of its receipt. He further stated that Special Executive Magistrate came to Civil Hospital and recorded dying declaration of Anita. It is further stated that the crime bearing No. 0/2007 was registered at Jalgaon due to burns of Anita. It was registered under Section 307 and 498-A of IPC. He went to police station at Erandol alongwith the papers. He registered crime No. 66 of 2007 under Section 498-A, 307 of I.P.C. He has further stated that his endorsement is on FIR i.e. on Exh.19. He further stated that he arrested at 7.00 p.m. He went to village Umarde. Prepared spot panchnama on spot in presence of two panchas. Said panchnama is on record. It bears his signature and signatures of panchas. Its contents are true. Spot panchnama is at Exh.
13. From the spot of incident, he seized one plastic can, one matchbox, one half burnt match stick, half burnt clothes, wet soil having smell of kerosene and simple soil from spot of incident. Those articles were seized and sealed. He came back to police station with seized articles. Seized articles were handed over to Muddemal clerk and receipt was obtained from him. He recorded the statements of witnesses from time to time. Material documents were obtained by him. Seized articles were sent to C.A. through Head constable Dhanrale with covering letter which is at Exh.30. It bears his signature. It is further stated that Anita died 22
during the course of medical treatment. Offence under Section 302 of I.P.C. was added. After completion of investigation, he filed charge sheet before the competent Court.
In his cross examination, evidence of this witness led in examination in chief, is not shattered in any way. 13 We have carefully perused both the dying declarations which are at Exh.17 and 19. We find that both the dying declarations are consistent. The overt act attributed to the accused-appellant in both the dying declarations is consistent. Two written dying declarations and one oral dying declaration, which is made before PW 6 i.e. brother of deceased Anita, by Anita, unequivocally indicate that the accused poured kerosene on her person and ignited matchstick and set her on fire. (Emphasis supplied.)
14 On careful perusal of both the written dying declarations, we find that there are no material contradictions or inconsistency so as to disbelieve the contents of the said dying declarations. The dying declaration recorded by the Executive Magistrate was in question answer form. Therefore, in the said dying declaration questions were 23
asked and answers were given by deceased Anita in reply to the questions. The Hon’ble Supreme court in the case of Maniben w/o Danabhai Tulshibai Maheria Vs. State of Gujarat, reported in AIR 2007 SC 1932, in para 11 held thus:-
“The burn injuries were caused by kerosene as it also evident from the Report of the Forensic Science Laboratory (Exh. 73). It may be true that the deceased gave her statement about the cause of her suffering injuries at about 12.45 in the morning before Dr. Ashish, but she gave her statement also before the Magistrate. Admittedly, there is no discrepancy in regard to the involvement of the appellant vis-a-vis her son Girishbhai. The only discrepancy which has been pointed out by Mr. Raichura was that in some of her statements, she had not stated the actual overt act played by appellant herein. In these statements, she merely had answered the questions put to her by different persons. When questions are put differently, answers would also appear to be different. On a first glance, it may appear that the detailed description of the offence is missing, but in our opinion the statement of the deceased must be construed reasonably.” On careful perusal of both written dying declarations, specific overt act is attributed to the accused-appellant and in both the dying declarations deceased Anita had stated that accused poured kerosene 24
on her person and set her on fire. In this case, spot of the incident is not disputed by the accused appellant. It is also relevant to mention that the said incident had taken place in the house of the appellant-accused during night time. Statement of accused-appellant under Section 313 of Cr.P.C. was recorded. In his statement, he has not offered any explanation under which circumstance his wife Anita died in his house and that too during night time. The prosecution has discharged its burden by way of bringing on record dying declarations of deceased Anita and proved the said dying declarations by leading evidence of witnesses, who recorded the dying declarations. The accused was bound to offer explanation under Section 106 of Evidence Act under which circumstances and how deceased Anita sustained burn injuries. The said explanation is consciously missing, in the statement of the accused recorded under Section 313 of Cr.P.C. Though counsel for the appellant contended that in cross examination of PW 6 Samadhan suggestion was given to him that deceased Anita tried to make attempt to set herself on fire, however, on perusal of cross examination of PW 6 we do not find such suggestion in respect of incident taken place on 13.8.2007. On careful perusal of the cross examination of PW 6, it clearly appears that the suggestion was given that prior to one and half years before recording the statement of PW 6, Anita made attempt to 25
put herself on fire. The said suggestion is emphatically denied by PW 6. The said suggestion cannot be said to be in connection with the incident for which the accused was tried. In our considered opinion, the appellant accused was obliged to explain under which circumstances, deceased Anita sustained burn injuries in his house during night time. However, he failed to do so.
15 The another contention of the counsel for the appellant that since Anita sustained 98% burns and therefore, she was not conscious and not in a fit condition to give dying declaration is concerned, the said argument sans merit. In this regard reliance placed on the judgment of this court in the case of State of Maharashtra Vs. Manohar Mukindrao Tayade (supra) is wholly misplaced, in the facts of the present case. This Court in the said matter was dealing with an appeal against acquittal filed on behalf of the State.
Relying on aforesaid judgment, the counsel for the appellant submitted that Medical Officer PW 5 was bound to ask questions to the patient about her fitness to give dying declaration before giving endorsement. In our opinion, it is not requirement of law that the questions are required to be asked to the victim by the doctor about her 26
fitness or consciousness for giving statement before giving endorsement about fitness of patient. In the evidence of Medical Officer, Executive Magistrate and Police Inspector, it is specifically stated that PW 5 Dr. Anita Jadhav, examined the patient before recording dying declaration and she found that patient was conscious and was in a fit state of mind to give dying declaration. Such endorsement are on dying declarations and there is nothing brought on record in the cross examination of this witness to disbelieve the evidence of PW 5, Medical Officer. The Medical Officer PW 5 has specifically stated before the Court that on examination of patient she told the concerned police Inspector and Executive Magistrate that patient is in fit condition to give dying declaration. On careful perusal of both the dying declarations, we find that such endorsement by the doctor is there. The evidence of PW 2, 3 and 5 unequivocally suggest that the patient Anita was in fit condition to give dying declaration. Merely because 98% burns were sustained by Anita cannot be a ground to jump to the conclusion that she was not in a fit mental and physical condition or conscious for giving dying declaration.
The Hon’ble Supreme Court in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710 has taken a view that 27
while considering the evidentiary value of dying declaration hyper technical view should not be taken. The relevant portion in para 3 of the said judgment reads thus:
” A dying declaration can be oral or in writing and any adequate method of communication whether by words by sign 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 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 provided 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 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 28
truthful nature of the declaration can be established otherwise.” Therefore, in the light of the observations of the Hon’ble Supreme Court as aforesaid, in our opinion, the argument of the appellant that it was incumbent upon the Medical Officer to put certain questions to the patient before giving endorsement that the patient is in fit condition to give dying declaration, is without any merit.
16 Therefore, taking into consideration the evidence brought on record by the prosecution, we have no doubt in our mind that accused appellant is responsible for the death of deceased Anita. On careful perusal of two written dying declarations and one oral dying declaration before PW 6 by Anita, we find that specific overt act is attributed to the appellant accused that the accused appellant poured kerosene on the person of deceased Anita and set her on fire. The Medical evidence further supports the prosecution case. The spot panchnama and recovery from the spot would indicate that incriminating articles were seized by the Police Officer. We also find that the appellant accused has not offered any explanation that under which circumstances and how his wife Anita sustained burn injuries and died in his house that too during night time. Therefore, we do not find any merit in this appeal. 29
17 However, so far as the conviction of the appellant accused under section 498-A of IPC is concerned, we find that the evidence of PW 6 is not sufficient so as to sustain the conviction of the appellant under Section 498-A of IPC. The evidence of PW 6 is not corroborated by any other evidence so as to attract the offence punishable under section 498-A of IPC, therefore, we acquit the appellant from the said offence and set aside the conviction of the appellant under Section 498-A of IPC.
18 In the facts and circumstances of this case, criminal appeal is partly allowed. The conviction and sentence of the appellant for the offence punishable under Section 498-A of I.P.C. is set aside. In so far as the conviction of the appellant for the offence punishable under section 302 of I.P.C. is concerned, we do not see any infirmity and perversity in the findings recorded by the trial Court and the conviction and sentence imposed on the appellant for the offence punishable under section 302 of I.P.C. is maintained.
19 Appeal is partly allowed and disposed of accordingly. *****