Bombay High Court Punjab S/O Sitaram Shirsat-vs-State Of Maharashtra on 23 March, 2005
Equivalent citations:I (2006) DMC 269
Author: S Kharche
Bench: D Sinha, S Kharche
S.T. Kharche, J.
1. This appeal is directed against the judgment and order of conviction dated 29.5.2001 passed by the learned 2nd Additional Sessions Judge, Akola, in Sessions Trial No. 161 of 1999, whereby the appellant/ accused has been convicted of the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500, in default to undergo further rigorous imprisonment for one year. However, he has been acquitted of the offence punishable under Section 498A of Indian Penal Code, against which the State did not prefer any appeal.
2. The case of the prosecution, in brief, is required to be stated as under:
(a) The marriage of the appellant/accused was solemnized with deceased Baby about ten years ago. They were blessed with children and were living jointly with all the family members. After the marriage Baby happened to go to her parents’ place on certain occasions and made complaints to them that her husband beats her and requires her fetch money from them.
(b) About two years prior to her death, she had the occasion to go to her parents and repeated the complaint she had against her husband, as a result of which her parents detained her and did not allow her to return to her matrimonial home. Sister Venubai, mother Laxmibai and brother-in-law Dadarao of the accused went to the parental place of Baby, pacified them and the accused had also assured that he would not treat his wife with cruelty and on this assurance Baby was sent to her matrimonial home on 24.4.1999.
(c) On 24.4.1999 in the wee hours one Kumar Avachar went to the place of parents of Baby and told them that Baby has been burnt and is admitted to the hospital. In the mean time, on admission of Baby in the District Hospital, Akola, and on intimation from the hospital authorities, the police had made arrangement for recording the dying declaration of the victim Baby through Executive Magistrate Mukhtar Ahmed (PW 4). The latter had recorded the dying declaration of Baby on 25.4.1999 in between 12.05 a.m. and 12.15 a.m. after satisfying himself that Baby was in a fit condition to give dying declaration by Dr. Arsad (PW 3).
(d) A.P.I. Tijare (PW 8) took up the investigation of this crime and recorded the statements of the witnesses. It was revealed during the course of investigation that it is the accused who had poured kerosene on the person of his wife and set her on fire. Consequently she had sustained 94% burn injuries and on 25.4.1999 she succumbed to those injuries in the hospital. Initially, the offence under Sections 307 and 498A of Indian Penal Code was registered against the accused and subsequently after the death of victim Baby it was converted into Section 302 of Indian Penal Code. Therefore, the charge-sheet against the accused was filed in the Court of J.M.F.C.
3. On committal of the case to the Court of Session, the learned Additional Sessions Judge framed and explained the charge to the accused to which he pleaded not guilty and, therefore, the trial proceeded with. The defence of the accused is that he was standing outside his house on the road at the time of the incident and saw that his wife had come out of the house in flames and, therefore, he had extinguished the fire with the help of quilt and that he is innocent. However, he did not examine any defence witness in support of his defence.
4. The prosecution has examined as many as nine witnesses and mainly relied on the oral dying declaration made by the deceased in presence of Vinod (PW 1) and Satyafulabai (PW 2) and also on the written dying declaration recorded by Mukhtar Ahmed (PW 4). The learned Additional Sessions Judge on appreciation of the evidence recorded the finding that Baby died as a result of homicidal death and the complicity of the accused in committing the murder of his wife has been duly established. Consistent with these findings, the learned Additional Sessions Judge convicted the accused and sentenced him as mentioned above. It is this judgment and order of conviction which is challenged in this appeal.
5. Mr. Daga, learned Counsel, for the accused contended that the dying declaration of deceased Baby was recorded by the Executive Magistrate Mukhtar Ahmed (PW 4) in a suspicious circumstance because according to him the dying declaration was recorded in betweeh 12.05 and 12.15 a.m. on 25.4.1999 and the offence is said to have occurred on 24.4.1999, at about 11.40 hours at Malkapur which is situated at a distance of 5 kms. from Police Station, Akola. The O.P.D. Card indicates that the patient was admitted in the hospital at Akola at 24.00 hours and, therefore, the dying declaration could not have been recorded at the relevant time. Mr. Daga contended that it was impossible for the Magistrate to receive the requisition from police at 11.55 p.m. and Baby could not have been admitted in the hospital within ten minutes from the time of occurrence of the incident. He contended that the offence was registered at the police station at about 1.00 a.m. on 25.4.1999 and there is something fishy in the timings brought on record.
6. Mr. Daga, learned Counsel, contended that the testimony of Dadarao (PW 7) would indicate that the accused was standing outside his house on the road and when Baby had come out of the house on the road in flames, her husband had extinguished the fire with the help of quilt. Mr. Daga further contended that the testimony of Dadarao clearly indicates that one Vijay Avachar, who is the uncle of the deceased, had made inquiry with her in presence of this witness Dadarao, upon whicn she had disclosed that the stove in the house was burst into flames because of which she was set on fire and sustained burn injuries. He contended that it is this Vijay who impressed upon the mind of Baby that she should not disclose the case of accidental burn and should implicate her husband in this case.
7. Mr. Daga further contended that the defence of the accused that he had extinguished the fire when he was standing outside his house on the road, would have been substantiated by the evidence of Babulal Ingle, Padmabai Shirsat and Akash, aged about 8 years who is the son of the accused and happened to be present at the spot of incident, but they have not been examined by the prosecution and, therefore, adverse inference may kindly be drawn against the prosecution. He contended that the evidence of Dadarao clearly indicates that the defence is probabilised and moreover the conduct of the accused is also relevant. He did not run away from the spot of incident. On the contrary, he helped the witnesses in bringing Baby at the hospital and he was present in the hospital till his arrest. He contended that in the process of extinguishing the fire, the accused had also sustained burn injuries and, therefore, the complicity of the accused has not been established beyond reasonable doubt and consequently he deserves to be acquitted.
8. In support of these submissions, Mr. Daga, learned Counsel, relied upon the decision of this Court in Ramesh Babu Desai v. State of Maharashtra 2005(1) Bom.C.R. (Cri.) 60, wherein it was held that “the prosecution has not been able to establish claim of deceased in her dying declaration and the evidence of the witnesses categorically stated presence of accused outside room of deceased at relevant time and attempt on his part to extinguish fire on body of deceased is corroborated by medical evidence and, therefore, the prosecution was not able to establish link between act of catching fire on body of deceased and any act on part of accused. Neither anything disclosed from defence of accused which can establish or reveal any false statement or contention by accused to use as missing link, and consequently the conviction of the accused was liable to be set aside.”
9. Mr. Daga, learned Counsel, further contended that the deceased had made dying declaration before her mother and brother but these witnesses for the first time have stated about it before the Court and did not disclose these facts before police and, therefore, the conviction cannot be founded on the basis of the dying declaration recorded by the Executive Magistrate. In support of these submissions, he relied on the decision of Supreme Court in the case of Meera v. State of Rajasthan II (2004) CCR 5 (SC) : 2004 ALL MR (Cri) 2869.
10. Mr. Daga, learned Counsel, further contended that the deceased had sustained 94% burn injuries and she was not in a condition to give her statement and there is nothing on record in the evidence of Vinod (PW 1) and Satyafulabai (PW 2) as to what was the condition of the patient and, therefore, their testimony that the deceased had made an oral dying declaration before them that her husband had poured kerosene on her person and set her on fire, is liable to be viewed with suspicion. In support of these submissions, he relied on the decision of this Court in Abdul Hakim Noor Mohammad Bhati v. State of Maharashtra, 2005 ALL MR (Cri) 113.
11. Mr. Jaiswal, learned A.P.P., supports the impugned judgment and order of conviction passed by the learned Additional Sessions Judge and contended that the complicity of the accused has been established through the evidence of Vinod and Satyafulabai to whom the deceased had made oral dying declaration in the hospital and their evidence has not been shattered in the cross-examination at all. There is no reason as to why the dying declaration recorded by the Executive Magistrate after satisfying that the deceased was in a fit condition to give statement, should not be taken to be the basis of conviction especially, when Dr. Arsad (PW 3) not only certified on the dying declaration in the beginning as well as at the end of the dying declaration that Baby was in a fit condition to give her statement. The medical officer was also present throughout and there is hardly any reason to discard the testimony of this witness as well as the Executive Magistrate, who are disinterested witnesses. He contended that simply because the prosecution did not examine some of the witnesses, it did not follow that the defence of the accused has been probabilised.
12. He contended that Dadarao (PW 7) is a hostile witness and, therefore, he has supported the defence of the accused in the cross-examination that Vijay impressed upon the mind of Baby during the intervening period of ten minutes that she should not disclose of having suffered burns while lighting the stove but she should state that she was burnt by Punjab, but no implicit reliance can be placed on his testimony especially when he admits in his cross-examination that his statement was not recorded by police and the aforesaid facts were disclosed by him for the first time before the Court at the time of recording of his deposition. However, the evidence of this witness Dadarao is a hearsay evidence and not admissible in evidence. He contended that the defence that has been put forth by the accused has not been suggested in the cross-examination of any of the prosecution witnesses and since there is no dispute that Baby died as a result of homicidal death and according to Dr. Khonde (PW 9) the cause of death was septicaemic shock due to 94% burns, it follows that the complicity of the accused in the commission of this crime has been duly established. He contended that in such circumstances, there is no reason for this Court to interfere into the findings of conviction and sentence recorded by the learned Additional Sessions Judge and the appeal may kindly be dismissed.
13. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that Baby got married with the accused about 10 years ago prior to the incident and during the valid wedlock the couple was blessed with three children, namely Akash aged about 8 years, Praveen aged about 6 years and Rupali aged about 4 years. It is also not disputed that the couple was living in the matrimonial home along with the three children. The incident occurred on 24.4.1999 at about 10.00 p.m.
14. The evidence of Vinod and Satyafulabai would reveal that on 24.4.1999 they came to know from Kumar Avachar that Baby was burnt and was admitted in the hospital and thereafter both of them had gone to the hospital along with the parents, brother, sisters, uncle and aunt of Baby. They met Baby and on inquiry she disclosed that her husband had beaten her and poured kerosene on her person and set her on fire. She succumbed to the injuries on 25.4.1999.
15. It is not in dispute that Baby died as a result of septicaemia due to burn injuries. The evidence of Dr. Khonde would indicate that on 25.4.1999 he performed autopsy on the dead body of Baby in between 4.20 p.m. and 4.35 p.m. and on external examination found superficial injuries with scabs all over the body except both the lower legs and part of the lower abdomen. The total percentage of byrn was 94%. The burn injuries were ante mortem. All the other internal organs were highly congested. He opined that the cause of death was septicaemic shock due to 94% burn injuries and 94% burn injuries were sufficient in the ordinary course of nature to cause death. Nothing fruitful could be brought in the cross-examination of this witness and, therefore, it is apparent that Baby died due to septicaemic shock due to 94% burn injuries.
16. The crucial question that arises for consideration is, whether the prosecution has succeeded in proving the complicity of the accused in committing the murder of his wife?
17. It is true that Akash, aged about 8 years and son of the deceased and accused, was present at the time of incident but he has not been examined by the prosecution. Simply because Akash and some other prosecution witnesses, namely Babulal Ingle and Padmabai Sirsat, have not been examined by the prosecution, it did not follow that the testimony of Vinod (PW 1) and Satyafulabai (PW 2) is doubtful. Vinod reiterated in his cross-examination like this, “I found my sister completely burnt. She was in pains. It is correct to say that when we went to the hospital, I, my parents and other relatives and those of the accused were together there when I made enquiry with my sister. Then my sister died and at that time I was in the hospital”. The material brought on record in the cross-examination would reveal that Vinod did make inquiry with his sister Baby, upon which she told that her husband had poured kerosene on her person and set her on fire. Vinod has admitted in cross-examination that police did not make any inquiry with him and he disclosed all the facts about the incident for the first time before the Court and he did not have any occasion to tell about the incident to anybody.
18. Similarly, Satyafulabai has stated in the cross-examination that nothing was asked to her by police and she was telling about the incident before the Court for the first time and she did not have any occasion to tell anybody about the incident. But this material brought on record is not sufficient to jump at the conclusion that her statement was not recorded by police during the course of investigation.
19. It appears that Vinod and Satyafulabai are rustic villagers and it would clearly reveal from the evidence of A.P.I. Tijare (PW 8) that he had recorded the statements of these witnesses on 25.4.1999 wherein material details have been incorporated and, therefore, it is not possible to accept that the testimony of both these witnesses suffer from any infirmity and that they did not disclose about the dying declaration made to them before police. In fact, the testimony of both these witnesses did not suffer from any material omission or contradiction and consequently there is no reason to discard the same.
20. The evidence of Executive Magistrate Mukhtar Ahmed (PW 4) would reveal that he had received requisition from the police on 25.4.1999 at about 11.55 p.m. Immediately he reached the hospital and recorded the dying declaration of Baby after satisfying himself from Dr. Arsad that she was in a fit condition to give her statement. It is necessary to reproduce the said dying declaration recorded by the Executive Magistrate along with the certificates given by the medical officer, which reads as under:
Pt. is fully conscious and oriented so fit for giving D.D.
Dr. S. S. Arsad
M.O.D.H., Akola, 25.4.1999,
What is your name?
My name is Sou. Babi Punjabrao Shirsat.
Age : 25 years.
Address: R/o. Malkapur, Police Station Civil Lines, Akola.
My husband beat me and thereafter set me on fire by pouring kerosene on my person. My relatives admitted me in Main Hospital, Akola.
Who is responsible for the said incident?
My husband Punjab Shirsat is responsible for the said incident.
The aforesaid statement (Dying Declaration) was read over to me.
L.T.I, of Babi Shirsat
Sd/- M. Ahmed
Patient was fully conscious and oriented while recording D.D. and after recording D.D. D.D. recorded in my presence.
Sd/-. Dr. S. S. Arsad
25.4.1999, 12.15 a.m.
21. The case of prosecution mainly rests on the two dying declarations-one made before Vinod and Satyafulabai and the other recorded by the Executive Magistrate. The sanctity behind dying declaration was expressed long before it was sanctioned by judicial opinion.
The eminent poet Shakespeare has put it in the following words:
Have I not hideous death within my view
Retaining but a quantity of life, which
Bleeds away even as form of wax,
Resolveth from his figure against the fire,
What in the world should make me now deceive
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth.
Oh, but they say that tongues of dying man
Enforce attention like deep harmony
For they breathe truth that breathe their words in pain.
22. The principle on which dying declaration is admitted, is indicated by the maxim nemo moriturus prossumitur mentiri a man will not meet his Maker with a lie in his mouth. When a man is dying, in the eyes of law, the grave position in which he is placed, affords sufficient grounds for the veracity of what he states and, therefore, law, in such circumstances, dispenses with the normal tests of oath and cross-examination.
23. Now, so far as the law in relation to the evidentiary value of written dying declaration is concerned, it has almost been settled by the Constitution Bench of the Hon’ble Supreme Court in the case of Laxman v. State of Maharashtra III (2002) CCR 247 (SC) : (2002) 6 SCC 710, wherein it has been held in paras 3 and 5, that: “The juristic theory regarding acceptability of a dying declaration is 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 which may affect their truth. The situation in which a man is on the 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 Courts 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 always to 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 looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit 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 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 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 d>ipg 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 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.
The Court also in the aforesaid case relied on the decision of this Court in Harjit Kaur v. State of Punjab, wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P., (at p. 701, para 8) to the effect that:
‘in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration.’
has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P., must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat
24. The Executive Magistrate Mukhtar Ahmed (PW 4) and Dr. Arsad (PW 3) are not in any way interested in seeing the success of the prosecution and since the Executive Magistrate after satisfying himself that the deceased was in a fit condition to give her statement, has recorded the dying declaration wherein the deceased has clearly implicated the accused by saying that it is her husband who had poured kerosene on her person and set her on fire, it follows that the said dying declaration deserves to be accepted being voluntary and truthful.
25. The basic requirements have been clearly fulfilled, namely (i) examination of the patient by the doctor before recording of the statement and a certificate by the doctor that the patient was in a sound mental state to give statement; (ii) presence of doctor near the patient during recording of the statement; and (iii) relations of the patient were not in the vicinity and were removed from the room wherein the statement of the patient was recorded, which leads to the legitimate inference that the statement made by the deceased is voluntary and free from any influence or tutoring, that the dying declaration was read over to Baby and she admitted the same to be correctly recorded and in token of the same her thumb impression was also obtained and Baby had in unequivocal and clear terms stated that her husband had poured kerosene on her person and set her on fire. Thus, the written dying declaration recorded by the Executive Magistrate has been corroborated in material particulars by the oral dying declaration made by the deceased to her brother Vinod and mother Satyafulabai in the hospital and, therefore, the learned Additional Sessions Judge has rightly recorded the finding that the complicity of the accused in committing the murder of his wife has been firmly established and there is no reason for this Court to take a different view of the matter.
26. In the case of Abdul Hakim v. State of Maharashtra (supra) the doctor was not present at the spot and there was no endorsement regarding the fitness of the deceased to make the statement and none of the two witnesses examined by the prosecution had stated about the condition of the patient and more particularly about the fitness of the deceased to make the statement before the Magistrate and under these circumstances it was held that it was not safe to accept the purported written dying declaration. Such is not the present case and, therefore, this decision is not of any assistance to the accused.
27. In the case of Meera v. State of Rajasthan (supra), the Apex Court observed that, “So far as the veracity of the first dying declaration is concerned, we are not inclined to attach much weight to it because the witnesses have for the first time mentioned about the said dying declaration one year after the occurrence and after the report of the Forensic Science Laboratory had become available. No one had earlier reported to the police aboutthe alleged dying declaration. It is, therefore, not safe to base the conviction of the appellant on the basis of such a dying declaration about which the witnesses for the first time have spoken about a year of the occurrence.”
28. Such is not the present case, in the instant case, it has been brought on record that the incident occurred on 24.4.1999 at about 10.00 p.m. and the deceased was admitted in the hospital at Akola which was at a distance of about 5 kms. from Village Malkapur, which appears to be situated at the outskirt of Akola city. -Thereafter the police had arranged for recording the dying declaration and sent the requisition to the Executive Magistrate which was received by him at 11.55 O’clock in the night. The Executive Magistrate consulted the medical officer and after satisfying himself that the victim was in a fit condition to give statement, recorded the dying declaration. This dying declaration was made due basis of First Information Report, on the basis of which offence was registered against the accused at about 1 O’clock in the night. Therefore, by no stretch of imagination, it could be said that the oral dying declaration made to the two witnesses, namely Vinod (PW 1) and Satyafulabai (PW 2), has lost its evidentiary value because they did not state about the same to the police during the course of investigation. In fact, the statements of both the witnesses have been recorded on 25.4.1999 itself and in such circumstances the aforesaid decision of the Supreme Court has no bearing on the facts and circumstances of the present case.
29. Mr. Daga, learned Counsel, attempted to submit that the conduct of the accused would show his innocence. According to him, the prosecution did not examine some of the witnesses who had stated before police that the accused was standing outside his house and his wife had come from inside the house in flames on the road and then the accused had extinguished the fire by putting quilt on her person and in that process he had sustained burn injuries. What is significant to note is that this defence has not been suggested in the cross-examination of Vinod (PW
1) or Satyafulabai (PW 2). The statements of Babulal, Padmabai and Akash recorded by the police under Section 161 of the Code of Criminal Procedure cannot be made admissible in evidence to show the innocence of the accused and in the given set of circumstances it is not possible to accept the submission of Mr. Daga that adverse inference against the prosecution needs to be drawn because of non-examination of these witnesses.
30. The accused was arrested on 25.4.1999 at 3.45 hours and in the arrest Panchanama it has been mentioned that no injuries were appearing on the person of the accused except some signs of superficial burns on the left hand and abdomen. From these recitals in the arrest Panchanama, it is not possible to jump at the conclusion that the accused tried to extinguish the fire and that too on the road. Therefore, on re-appreciation of the evidence, we are of the considered opinion that the prosecution has successfully established the complicity of the accused in committing the murder of his wife and, therefore, the offence would be squarely covered by the provisions of Section 302 of Indian Penal Code and nothing short of it. In the result, the appeal fails and stands dismissed.