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Sau. Ashabai Bhaskar Pagare-vs-The State Of Maharashtra on 5 August, 2009

Bombay High Court Sau. Ashabai Bhaskar Pagare-vs-The State Of Maharashtra on 5 August, 2009
Bench: B.H. Marlapalle, R. S. Dalvi

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

Criminal Appeal No.635 of 2000

Sau. Ashabai Bhaskar Pagare .. .. Appellant (Orig. Accused No.1)

Versus

The State of Maharashtra .. .. Respondent (Orig.Complainant)

Ms.Rebecca Gonsalves for Appellant.

Mrs.V.R. Bhosale, APP for State.

—-

CORAM : B.H. MARLAPALLE &

SMT.ROSHAN DALVI, JJ.

Dated : 4th & 5th August, 2009

ORAL JUDGMENT : (PER B.H. MARLAPALLE, J.)

1.This Criminal Appeal filed under Section 374 of Criminal Procedure Code arises from the order of conviction and sentence recorded by the learned III Additional Sessions Judge, Nashik on 17.7.2000 in Sessions Case No.194 of 1999. Three accused were put on trial for the offences punishable under Sections 302, 498A read with Section 34 of Indian Penal Code (IPC) and accused No.1, the present Appellant, has been convicted for the offence punishable under Section 302, whereas she has been acquitted of the offence punishable under Section 498A. Accused Nos.2 and 3 2

i.e. the Appellant s husband and son respectively, have been acquitted of both the charges. The Appellant is presently undergoing sentence as her Application for bail was rejected.

2.The prosecution case, in short, runs thus:-

Mandabai, the widowed sister of Kashinath-Madhukar Rupavate, was staying with him at village Ghoti in Nashik District and she had a daughter by name Kalpana. With the help of her two brothers, Mandabai performed the marriage of her daughter with accused No.3-Ajay, son of accused No.1 and accused No.2 on 24.5.1999. The accused are the residents of nearby village Manikkhamb. After the marriage, Kalpana alias Padma started residing at her matrimonial home and on some festivals like Nag Panchami, etc., she had visited parents. Accused No.2, with his brother by name Prabhakar, was staying in the adjacent house along with his family. On 16.9.1999 at about 8.30 a.m., Prabhakar went to the house of Madhukar and informed that Padma had sustained burn injuries and was brought to the Civil Hospital at Ghoti by all the accused persons and, therefore, Mandabai, Kashinath and his wife Kantabai went to the hospital at Ghoti and by then, she was already shifted to the Civil Hospital at Nashik as per the advice of the Medical Officer at the Ghoti Hospital. P.W.2-Uttam 3

Pagare is the neighbour of the accused and also Police Patil of village Manikkhamb. Around 8 O Clock in the morning, he heard the shouts of Padmabai and, therefore, along with his wife, he rushed to the house of the accused. They saw her with burn injuries and she was screaming. She was uttering that her mother- in-law had set her on fire by pouring kerosene on her person. The accused as well as P.W.2 called for a jeep and Padmabai was shifted to the hospital at Ghoti and P.W.2 had also accompanied. According to him, Padmabai on the way from village Manikkham to Ghoti, had made oral statement that her mother-in-law had poured kerosene and set her on fire. Padmabai came to be admitted at the Civil Hospital at Nashik around 9.15 a.m. on the date of the incident i.e. 16.9.1999. P.W.1 Dr.(Mrs.) Kalpana Vyavahare had admitted the injured to the hospital and recorded the case history as disclosed by the victim herself. P.W.1 had sent a message to the Police about the burn injuries, patient having been admitted and, therefore, Police sent Constable Shankar Pawar (P.w.3) who visited the hospital to record the statement of Padmabai. He obtained a certificate from P.W.1 about the fitness of Padmabai and proceeded to record her dying declaration (Exhibit-28) after obtaining the medical certificate, Exhibit-27, from P.W.1. After recording the dying declaration, he again obtained the endorsement of P.W.1 4

and also the thumb impression of Padmabai. Based on the statement recorded by P.W.3, a complaint was registered and Exhibit-28 was treated as FIR. P.w.9- Babaji Somaji Budhavant, API, took over the investigation from PSI Bhusalh and initially CR No.88 of 1999 was registered for the offence punishable under Section 307 of IPC. He visited the house of the accused on the very same day and recorded the statement of three witnesses and also took accused No.1 in custody. After Padmabai died, the CR was amended and it was registered under Section 302 and Section 498A read with Section 34 of IPC. He arrested accused Nos.2 and 3 on 17.9.1999. On 16.9.1999 on the demise of Padmabai, he drew the inquest panchanama at Exhibit-24. While drawing the spot panchanama at Exhibit-39, P.W.4- Bhagirath Jadhao was the panch witness. The dead body was then sent for postmortem and P.W.6-Dr.Keshav More attached to the Nashik Civil Hospital, conducted the postmortem and prepared the PM Report at Exhibit-42. The articles collected at the time of drawing of the spot panchanama were sent for CA and CA Report at Exhibit-49 was received. On completion of the investigation, charge-sheet was filed and as the case being extensively triable by the Sessions Court, order of committal under Section 209 of Criminal Procedure Code was passed on 6.11.1999, and the charge framed by the Sessions Court on 15.10.1999.

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3. The prosecution examined in all 9 witnesses and relied upon multiple dying declarations, orally made to some of the witnesses. The first oral dying declaration was claimed to have been made to P.W.2- Uttam Pagare and his wife P.W.8-Mirabai when they visited the house of the accused on hearing the shouts of the deceased. The second oral dying declaration made is again to P.W.2-Uttam Pagare while the deceased was being taken from Manikkhamb to Ghoti hospital. The third dying declaration is claimed to have been orally made to P.W.7-Kantabai while the deceased was being taken from Ghoti Hospital to Nashik Civil Hospital. The fourth oral dying declaration is claimed to have been made to P.W.5-Madhukar and P.W.7-Kantabaiat Nashik Civil Hospital. We have scanned through the oral depositions of P.W.2-Uttam Pagare, P.W.5-Madhukar Rupavate, P.W.7-Kantabai and P.W.8-Mirabai on the point of oral dying declarations made to them. Their substantive evidence before the trial Court suffers from omissions, contradictions and improvisations. We have no doubt in our mind that all these oral dying declarations made to P.W.2, P.W.5, P.W.7 and P.W.8 do not inspire confidence and, therefore, they have been rightly disbelieved by the trial Court.

4. The trial Court has mainly considered the spot panchanama at Exhibit-39, the inquest panchanama at 6

Exhibit-24, the substantive evidence of P.W.1- Dr.Kalpana Vyavahare, the dying declaration recorded by P.W.3-Shankar Pawar, the CA Report at Exhibit-49, including the PM Report at Exhibit-42. According to P.W.6, Padmabai died due to extensive burns. In his cross-examination, P.W.6 admitted that he had not mentioned whether the burn injuries were suicidal, homicidal or accidental. He stated that the deceased had sustained 90% burn injuries as under:-

1.Head neck face 9%

2.Upper limbs 18%

3.Anterior Abdominal walve 8%

4.Back 18%

5.Perinium 1%

6.Right lower limb 18%

7.Left lower limb 18%

He also stated that all the burn injuries were ante-mortem and sufficient in the ordinary course of nature to cause her death. At this stage itself, we refer to the CA report at Exhibit-49 and if the same is read with the spot panchanama at Exhibit-39, it is clear that some of the articles like partially burnt and molten cloth chips, partially burnt quilt, partially burnt pillow collected from the spot, were detected of kerosene residues. We have also referred to the statement of all the accused recorded 7

under Section 313 of Criminal Procedure Code and it is noted that at the time of the incident all the accused and the deceased were staying in the same house, the deceased sustained burn injuries in the kitchen and she was lying in the burn condition at the door of the kitchen when P.W.2 and his wife reached the house of the accused. They agreed that the victim was conscious but stated that they were framed and the prosecution case was false. However, in the cross-examination of P.W.9, the defence took the plea of accidental death. It was also claimed that P.W.2 had demanded an illegal gratification of Rs.10,000/- and, therefore, he deposed in support of the prosecution. It is not the case of the defence that despite all the accused being present at the relevant time at home, any of them tried to rescue the victim from the burn injuries and in turn sustained some burn injuries on his or her person.

5.The impugned order of conviction and sentence is based on one dying declaration reduced in writing by P.W.3 and the second is in the form of medical history as told to P.W.1-Dr.Kalpana Vyavahare. Ms.Gonsalves, the learned Counsel for the Appellant, submitted that both these documents could not have been relied upon in view of the inherent defect in the same and the oral depositions of P.W.2 as well as other witnesses of the prosecution disclosed that the victim was unconscious even at the spot of the incident as well as when she 8

was taken from Ghoti hospital to the Civil Hospital at Nashik. She also pointed out to the medical case papers and submitted that the victim was not in a fit condition and in fact it was doubtful whether she could utter any words as she was put on inhalator. Referring to the dying declaration at Exhibit-28, it was submitted by Ms.Gonsalves that it did not indicate the satisfaction of the Medical Officer recorded thereon, that the patient was fit to make a statement, before recording of the said statement started and the statement made on completion of the writing of the said dying declaration was perhaps in the office of the CMO and not in the burns ward. She also pointed out that there is no confirmation on the dying declaration that it was read over and explained to the victim by P.W.3 and then she was understood the same and confirmed that it was reduced in writing as per her own statement. It was also submitted that if the dying declaration was recorded between 11.45 A.M. and 12 Noon, the endorsement of the doctor indicated that it was made at 12 Noon. Ms.Gonsalves also pointed out that P.W.1 had stated in her depositions that initially the case history was recorded by the internee doctor who was not examined before the Court and, therefore, the subsequent recording by P.W.1 was the case history which created suspicion. Ms.Gonsalves also submitted that the dying declaration to rely upon as evidence 9

within the meaning of Section 32 of the Evidence Act has to be read in terms of the contents therein and not the paper on which it is written. In short, she submitted that the factum of recording the dying declaration is not as important as the material contains of the same and which are required to be confirmed by the victim after the recording is over. In support of these submissions, she relied upon the following decisions of the Supreme Court:-

1.Sarwan Singh vs. The State of Punjab

AIR 1957 SC 637.

2.Dandu Lakshmi Reddy vs. State of A.P.

1999 SCC (Cri) 1176.

3.Paparambaka Rosamma & ors.

vs.

State of Andhra Pradesh

AIR 1999 SC 3455

4. P. Mani vs. State of Tamil Nadu

AIR 2006 SC 1319

5. Smt.Laxmi vs. Om Prakash & ors.

AIR 2001 SC 2383.

6. Shaikah Bakkshu & ors. vs. State of Mah. 10

2007 (8) Scale 601.

Ms.Gonsalves also relied upon the following decisions of this Court :-

1. Manohar Dadarao Landge vs. State of Mah. 2000(2) Mh. L.J. 3.

2. State of Maharashtra

vs.

Kamalakar N. Bhavsar & ors.

(2003) DMC 358.

3. State of Maharashtra

vs.

Manohar

(2005) DMC 816.

4. Deorao s/o. Sonbaji Bhalerao & anr.

vs.

State of Maharashtra

2008 ALL MR (Cri) 1921.

6.The law on the issue of dying declaration and its reliability has been well settled by the Constitutional Bench of the Supreme Court in the case of Laxman vs. State of Maharashtra, AIR 2002 SC 2973. The view taken in Paparambaka Rosamma (supra) has been overruled in the said case. The Apex Court went on to state, 11

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 specially 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. ….

Let us, therefore, examine whether the dying declaration at Exhibit-28, meets the requirements of law and it could be relied upon to base the prosecution case.

7. P.W.3-Shankar Pawar, Police Hawaldar, attached to the Ghoti Police Station, received a message on 16.9.1999 at about 9.30 a.m. while he was on duty, regarding the burn injury case and that he was asked to go to the Civil Hospital at Nashik and record the statement of the victim lady. He, therefore, reached the Civil Hospital at Nashik between 10 a.m. and 10.30 a.m., saw the victim and approached the Medical Officer on duty. He submitted a report informing that he wanted to record the statement of the victim after obtaining certificate that she was conscious and in a 12

position to give her statement (Exhibit-37). The said certificate bears the doctor s endorsement which is marked as Exhibit-36 and it reads thus: Patient is conscious and able to talk . He then went to the victim and recorded his statement in his handwriting, but as per the statement made by the victim. He stated that after the statement was recorded, the victim put her thumb impression of her left hand on the said statement. He thereafter submitted the same to the Police Station and the PSO registered the offence on its basis (CR No.88/1999). In his cross-examination, he admitted that he had submitted the report to the Medical Officer in Civil Hospital at 11 a.m., though the time was not written in the report. The burns ward was located on the 3rd floor of the Civil Hospital, whereas the Medical Officer s casualty room was on the ground floor. He further reiterated that the statement was recorded in the burns ward, but he was not able to remember whether it was on the 1st floor or on the 3rd floor and after recording the statement he submitted the report to the Medical Officer in the casualty room. Doctor came along with him from the casualty room to the burns ward and the doctor made endorsement on the statement after the statement was recorded. At the time of recording the statement, he had asked the relations of the victim to go out of the ward. He admitted that he did not ask the victim whether she could sign on the 13

dying declaration, but he read over the statement to her though there was no such specific endorsement. He denied the suggestion that the contents of the statement were not as made by the victim. He also denied the suggestion that the victim was unconscious and was not in a position to give the statement when the dying declaration was recorded. He further denied that her statement was recorded as per the say of her relations.

Now, we will come to the evidence of P.W.1-Dr. (Mrs.) Kalpana S. Vyavahare. She admitted that head constable Pawar, P.W.3 had met her in the hospital at about 12 noon and he was intending to record the statement of the patient and for that, he wanted to ascertain whether the patient was conscious and able to give statement. He gave the letter which was endorsed (Exhibit-36). She further stated that prior to effecting the said endorsement, she examined Padmabai and then found that she was conscious and able to give her statement and, therefore, she made the endorsement at Exhibit-36 in her own handwriting. She confirmed that the contents therein were correct. The dying declaration was thereafter recorded by P.W.3-Shri Pawar, Buckle No.2050 from Ghoti Police Station. After completion of recording of the statement, she again examined the patient and made her endorsement on the statement, Exhibit-28. She confirmed that the endorsement was hers and 14

marked as Exhibit-27. She also stated that she had examined the patient carefully and talked to her to ascertain her consciousness. In her cross-examination, she denied the suggestion that without examining the patient she had made the endorsement in a routine course. She also denied that the said endorsement was made by her in her office.

8. As per the medical history recorded in the case papers at Exhibit-29, the doctor stated that the patient was admitted by her when she was on duty and at the time of her admission, the patient had given her history that she was burnt by her mother-in-law. The doctor further stated that she entered the said history given by the patient on the admission papers, Exhibit-29 (MLC No.13192 dated 16.9.1999, indoor patient No.62260). She stated that the patient was admitted at about 9.15 a.m. and died at 2 p.m. on 16.9.1999 while under treatment. In her cross- examination, she denied the suggestion that if the patient sustained third degree burn injuries and fell unconscious, there would be less chances of regaining the consciousness. To a specific question asked to her, he clarified that the patient admitted was not having deep burn injuries. She also stated that it would not be correct to say that in a situation like the patient admitted, the vocal cord and respiratory system would 15

be affected. She also denied the suggestion that due to inhalation of carbon mono oxide the air passage would get blocked, though she admitted that in some cases kidney, lungs and brain usually are found congested. She clarified the meaning of patient is conscious . According to her, when the doctor says patient is conscious, it means the patient is well oriented. She also admitted that initially the internee doctor had made wrong entry that the patient had suffered 97% burn injuries and she subsequently corrected to 90% burn injuries. According to the doctor, at 9.15 a.m., general condition of the patient was good and the treatment mentioned in the case papers was started immediately in the ward. She denied the suggestion that the patient did not respond to the treatment. She also denied the suggestion that endorsement made by her on the statement recorded by P.W.3 was made by her in her office. She clarified that she put the questions to the patient to ascertain her condition. She had asked the patient her name as well as her address. She denied the suggestion that the statement of the victim was recorded by the Police and the certificate thereof was endorsed by her by sitting in her office. On a specific question asked, the doctor clarified that there are stages of unconsciousness. If the patient is deeply unconscious, he will not respond but in earlier stages of 16

unconsciousness, the patient may respond. She also denied the suggestion that medical history was given by one of the relations of the deceased and not by the victim herself.

9.On perusal of Exhibit-28, which was recorded by P.W.3, the same has ended with the following words:-

S ek÷kk tckc ek÷® lkax.® Áek.® cj®cj yhghyk vkgs- S

This endorsement on Exhibit-28, clearly goes to show that after recording the dying declaration, P.W.3 read it out to the victim and she confirmed that her statement was recorded, as told by her. The medical case papers at Exhibit-29 also show that the portion of chest and abdomen had sustained only 0.8% burn injuries. The medical papers at Exhibit-29 indicated that the patient was conscious till 12 noon and she had started gasping after 1 p.m. At 1.45 p.m. her pulse was not felt and at 2 p.m. she was declared dead. The doubts created about the case history, as recorded by P.W.1, are not supported from the record and by the evidence of P.W.1. Though the victim s general condition at 9.15 p.m. was poor, that, by itself, did not mean that the patient was unconscious or was not fit to make the statement. The lengthy cross-examination of P.W.1 clearly rules out the doubts about the patient being conscious and in a position to make a statement till 12 noon on 16.6.1999. This case history recorded by P.W.1 17

corroborates the dying declaration at Exhibit-28 and in our considered opinion, the learned Judge of the trial Court was fully justified in relying upon the same.

10. The trial Court rightly relied upon the judgments of the Supreme Court in the case of Suresh vs. State of M.P., 1987 (2) SCC page 32 and Ganpat Mahadeo Mane vs. State of Maharashtra, 1993 Criminal Law Journal 298. In the first case, the patient had sustained 100% burn injuries but of secondary degree. The patient s dying declaration, as recorded by Dr.Bhargavana in the hospital, though the victim had started going into coma, the Apex Court had accepted the dying declaration in support of the order of conviction. Similarly in the case of Ganpat Mahadeo Mane (supra), the victim had sustained 97% burn injuries all over the body and the conviction was maintained on the basis of the sole dying declaration.

11. In the instant case, the patient had suffered 90% burn injuries. Thus, the reasoning set out by the trial Court in support of its order of conviction does not suffer from any errors and the evidence, as placed before it, has been properly evaluated. The prosecution case on the basis of the dying declaration at Exhibit-28 and the medical history recorded in the case papers has been rightly found to be reliable. The 18

prosecution case on the basis of the circumstantial evidence has been established so as to prove the guilt of accused No.1, the present Appellant, beyond any doubt and, therefore, the order of conviction passed by the learned Additional Sessions Judge is required to be confirmed.

12.Once the conviction under Section 302 of IPC is upheld, the minimum sentence is of life imprisonment and the same has been awarded in the instant case as well. Hence, the order of conviction also requires to be confirmed.

13.For the reasons stated above, this Appeal fails and the same is hereby dismissed.

14.Undoubtedly, the Appellant will be entitled for set off under Section 428 of the Code and we note that she has been in custody from 16.9.1999.

[SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]

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