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Sunil Kashinath Raimale-vs-State Of Maharashtra on 17 November, 2005

Bombay High Court Sunil Kashinath Raimale-vs-State Of Maharashtra on 17 November, 2005
Equivalent citations:2006 CriLJ 589
Author: N Dabholkar
Bench: N Dabholkar, S Naik

JUDGMENT

N.V. Dabholkar, J.

1. Appeal Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment and order dated 28.10.2004 delivered by 3rd Ad Hoc Additional Sessions Judge, Jalgaon, in Sessions Case No.69/2004. By the impugned judgment, trial Court has held appellant guilty for offences punishable under Section 302, 498A of IPC and sentenced him to suffer life imprisonment and rigorous imprisonment for 3 years on respective counts. In addition, he is also sentenced to fine of Rs.5,000/- on each count and rigorous imprisonment for two months in case of default also on each count.

2. The incident in question took place on 29.1,2004 at about 7 or 7-30 a.m. at the place of accused i.e. village Punkheda Tq. Raver Dist. Jalgaon. There is no dispute that victim Sarlabai was married to appellant -accused about 10/11 years ago and the couple is gifted with 3 children, a son and two daughters. As admitted by PW 3 Vasant (father of the deceased), eldest son was aged 10 years and daughters were aged 7 and 5 years at the time of alleged incident.

So far as incident is concerned, statement: of victim recorded by PW 5 Devendra Patil, then PSI attached to Zilla Peth Police Station, on 29.1.2004 between 13-20 to 13 40 hours at Civil Hospital. Jalgaon, was treated as FIR and offence was registered on the basis of the same. In the said dying declaration, victim has given a detailed story. She claimed that since about one month prior to the alleged incident, husband had started demanding divorce by expressing that he wanted to many an educated girl. He was serving at Muktainagar Kanya Shala at the material time. On 26.1.2004 at about 3 p.m., husband had inflicted an injury on the left arm of victim by using sickle as a weapon. Even on 28.1.2004 at about 6p.m. husband had caught victim by hair and struck her head on the wall. On that evening, husband had departed for the place of his sister and returned only by about 9-30 p.m. No complaints were lodged about these earlier incidents.

On 29.1.2004 at about 7-30 a.m., husband again raised his demand for divorce. She was abused, in filthy language. Wife showed her disinclination towards the proposal of divorce by pointing out that they already have 3 children arid now they can not think of separation. According to Sarlabai, thereafter husband poured kerosene upon her person from a container and ignited her wearing apparel by using matchstick and ran away. She ran in the courtyard in burning condition when one Sopan Koli extinguished her.by using a Chaddar. Thereafter, her father arrived on the scene, who took her initially to Rural Hospital, Raver, and then to Government hospital, Jalgaon.

Upon completion of investigation into this offence, chargesheet was filed against accused, who was tried for offences punishable u/ss. 302, 498-A of IPC by 5th Ad Hoc Additional Sessions Judge, Jalgaon, and upon finding of guilty, was convicted, as described earlier.

3. In order to substantiate the charges, prosecution has relied upon oral evidence of as many as 13 witnesses, who can be described in brief as follows in the order of their importance for the purpose of prosecution:

PW 4 Vijay Patil is Police Patil of Punkheda. He claims to have reached the location by accident, to have heard victim Sarla, who accused her husband of having set her on fire and who also gave an intimation to that effect to father of Sarla namely Vasant Thakane (PW 4). The father has complimented the deposition of Police Patil.

There are two recorded dying declarations first one was recorded by PSI Devendra Patil (PW 5) and this dying declaration (Exh. 23) was treated as FIR. PSI Patil has also carried out part of the investigation. Second dying declaration was recorded by PW 9 Ramlal Brahmane. The dying declaration is at Exhibit 36. These two dying declarations were recorded while Sarla was admitted at Civil Hospital, Jalgaon. Those are recorded with a gap of hardly 5 minutes; the first one between 13-20 to 13-40 hours and second one between 13-45 to 14-00 hours. It can be said that these dying declarations are recorded within 7 to 8 hours from the occurrence, which fact is laid emphasis upon by the learned prosecutor.

There is one more dying declaration recorded incomplete. It was tried to be recorded by Executive Magiatrate, Raver, while patient was inltialy taken to Rural Hospital, Raver, PW 12 Dr. Gopal Mahajan has deposed about the same, who was medical officer in-charge. To the Police as well as to the Executive Magistrate, Dr. Mahajan has certified that patient was semi conscious and not in a position to make a statement (Exhs. 43 & 44). It appears that Executive Magistrate still tried to record a statement and failed to record the same. The statement recorded is only to the effect.

Vernacular matter omitted.

The incomplete dying declaration is at Exhibit 44.

Dr. Uihas Taskhedkar ( PW 11) was casualty medical officer at Civil Hospital, Jalgaon, when both the dying declaration (Exhs. 23 & 36) were recorded by respective officers and he has certified about fitness of patient to make a statement.

Panch Asha Nanaware (PW 1) was present when inquest was drawn. PW 2 Ashok is Police Head Constable and he had carried Muddemal property to Forensic Science Laboratory. PW 6 Sopan Koli was a panch witness when spot panchanama (Exh. 26) was drawn. Sopan has turned hostile. Dr. Surwade (PW 10) had performed post mortem. The fact of Sarla having suffered burn injuries not being disputed, the evidence of these 3 witnesses has become insignificant.

PW 7 Ball and PW 8 Ramchandra are panch witnesses to discovery panchanama under Section 27 of the Indian Evidence Act, prosecution claimed that sickle, which was used as weapon by accused in the incident dated 26.1.2004, was discovered at the instance of accused, both these witnesses having turned hostile, the documents were technically proved by investigating officer PI Deshmukh (PW 13).

4. Although prosecution has claimed that accused had absconded after the occurrence, the accused controverts this position in his statement under Section 313 of Cr. P.C., 1973, he has denied almost all the averments of the prosecution either by saying that those are false, at times, he has claimed ignorance by saying “I do not know”. However, he has admitted arrival of Police Patil Vijay (PW 4) ori the scene. So far as claim of Vijay that he heard Sarlabai (oral DD). Accused states that Sarlabai was unconscious and made no statement to Police Patil (Questions 13 & 14 during the course of statement u/s 313 of Cr. P.C., 1973). According to accused, the dying declaration was recorded by Police, as desired by father of victim. Even regarding dying declaration by executive Magistrate, accused has claimed that Sarla was unconscious and she made no statement.

In the concluding part of the statement, accused has raised a positive defence. He states that there used to be few quarrels between him and Sarla. She was hot tempered woman. On the alleged day, when she caught fire, he was just outside the house. He tried to extinguish fire and he had suffered burn injury to his hand. Thus, according to accused, he has not set fire to his wife Sarlabai, although he does not make out any positive case regarding the reason why Sarla might have caught fire, such as accident or homicide.

5. The trial Court, by its impugned judgment, has recorded a finding that Sarla died as a result of burn injuries, this was on the basis of medical evidence on record. The trial Court also found evidence of Police Patil Vijay (PW 4) to be worthy of belief. PW 4 Vijay has claimed to have heard oral dying declaration. Learned Judge felt that the version is convincing, because PW 4 had immediately reacted by informing the version of Sarla to her father PW 3 Vasant on telephone. Although admission of Vijay that he does not know the telephone number of father of deceased, was brought to the notice of learned trial Judge, he has explained it by observing that a layman can not be expected to remember telephone number, which he has rung only once. Inability of Vijay to distinguish and ascertain whether father of victim travelled with him on the motorcycle or brother of father travelled with him, also did not appeal the conscience of the trial Court. In para 12 of the judgment the trial Judge observed that this inability on the part of Vijay is not much material. The trial Court also observed that it is not much material whether father of deceased travelled with Sarla in auto-rickshaw or he travelled on the motorcycle of Police Patil. (We may state here itself that victim was shifted from Raver hospital to civil hospital and the view recorded by the Judge is pertaining to this journey whereafter the dying declarations were recorded at civil hospital. We may state that the trial Court was not correct in taking a view that father travelling in rickshaw with victim daughter is not of much importance.) Inspite of these defects pointed out, the trial Judge was inclined to believe the evidence of PW 4 Vijay for the reasons recorded in paras 12 & 13 of the impugned judgment.

Having gone through the evidence before the trial Court, it can be said that father claims to have heard the daughter, but it was only after Police recorded dying declaration (Exh.23) and, therefore, version, which can be termed as oral dying declaration heard by father is not of much importance. Father has learnt, the story through Police Patil Vijay. There is one peculiar thing about the present case. Father was very much present by the bed side when PSI Patil recorded dying declaration (Exh. 23). Prosecution has made no secret of this presence. On the contrary, at the foot of Exhibit 23, PSI has obtained verification of father that dying declaration of his daughter was recorded correctly, as per narration by Sarlabai. The trial Court, for the reasons discussed in paras .16 to 20 of the judgment, has felt the recorded dying declarations (Exhs. 23 & 36) to be worthy of credence, mainly because there was no opportunity to tutor, since according to trial Court, she was not accompanied only by lather, but also by father in law. According to trial Court, the dying declaration recorded by Executive Magistrate should stand on a higher pedestal than that recorded by PSI, because Executive Magistrate is an uninterested witness.

Having believed oral as well as written dying declarations, learned Judge has recorded a finding of guilty so far as charge under Section 302 of IPC is concerned. ;

In para 26 of the judgment, trial Judge has referred to contents of dying declara tion (Exh.23) and more particularly the in cidents those took place on 26th and 28th January, 2004, during which husband is alleged to have inflicted injuries upon the person of Sarlabai. He felt that this part of the dying declaration stands corroborated by the inquest, which showed that there whs injury to left arm as well as on the forehead of deceased Sarla. The learned Judge has carried forward these observations to para 32 of the judgment wherein he has discussed regarding proof for the offence punishable under Section 498A of IPC. He has also referred to dying declaration (Exh. 36) wherein wife has narrated that husband used to demand divorce so that he could marry an educated girl. On the basis of these narrations in the two dying declarations regarding incidents dated 26.1.2004 and 28.1.2004, the trial Judge has observed that these two trustworthy dying declarations demonstrate that accused used to subject Sarla to cruelty. Support is drawn to these observations by relying upon oral evidence of PW 3 Vasant (father of deceased), who has narrated that accused used to drink liquor and used to beat Sarla for petty household reasons, although on the basis of grievance expressed by Sarla. The learned trial Court consequently recorded an affirmative finding so far as charge under Section 498A of IPC is concerned.

6. Heard Advocate Shri Joydeep Chatterji for appellant and APP Shri S.D. Kaldate for respondent – State.

The two lawyers have taken us through entire evidence and the judgment. We intend to refer to multiple prongs of the arguments during the course of discussion of our reasons, but to describe in brief, it can be said that the learned counsel for the defence assailed all 3 dying declarations, According to him, the deposition of Police Patil of having heard oral dying declaration is unworthy of belief in view of admissions in the cross examination by him as well as father of victim and their subsequent conduct as influenced by the fact. So far as written dying declarations are concerned, he claimed that those are creation of either tutoring or engineering on the part of father. He blamed the prosecution for suppression in not examining the person Sopan Koli, who is referred in the dying declaration as a person having extinguished the fire. (There are two Sopan Koli referred in the witness list. Sopan Sukdeo Koli is a panch witness examined as PW 6 and who turned hostile. Other witness is Sopan Vithal Koli at Sr. No. 5 of the witness list, who is not examined by the prosecution. He also pointed out that investigating officer had recorded statement of the daughter of victim, who was a competent witness being present in the house at the time of occurrence. He has also pointed out the instances and submitted that there is clear indication of eagerness on the part of father to implicate son in law.

Learned APP has towed the same line of reason as recorded by the trial Court and according to him, the trial Judge was justified in observing that the dying declarations are trustworthy. He, therefore, urged that this Court may not interfere with the findings of guilty and judgment of convictions.

7. So far as offence under Section 498A of IPC is concerned, the learned trial Court seems to have lost sight of the definition of “cruelty” as Incorporated in the Explanation to the said Section. On reference to said Explanation, it can be seen that conduct of two types is defined as cruelty, which would attract punishment under the said provision. If husband or his relatives subject wife to ill-treatment of such a magnitude that she is psychologically driven to commit suicide, such ill-treatrnent is termed as cruelty. In the matter at hands, prosecution has not claimed suicide on the part of Sarlabai and, therefore, sporadic incidents of ill-treatment by husband (dated 26-1-2004 and 28-1- i 2004) even if believed to be true, would not attract the definition of cruelty. Otherwise, if husband and his relatives subject the deceased to harassment in order to pressurise her and relatives of wife to satisfy their unlawful demands for any property or valuable security, such harassment is also termed as cruelty. In the recorded dying declarations (if those are accepted), the incidents dated 26.1.2004 and 28.1.2004 were aimed at pressurising wife for divorce. It was not aimed at pressurising wife for divorce. It was not aimed at pressurising for any property or valuable security and, therefore, strictly, those incidents even if believed to be true would not attract Section 498A of IPC.

Narration of father that he had heard daughter complaining about ill-treatment at the hands of husband, would be inadmissible piece of evidence in the light of ratio laid down by the Supreme Court in the matter of Gana Nath v. State of Orissa , because such narration does not strictly fall within the purview of Section 32(1) of the Indian Evidence act as a dying declaration, since cause of the death is pleaded to be homicide and not suicide by the prosecution.

We are, therefore, of the view that the trial Court was not justified in recording a finding of guilty so far as charge under Section 498-A of IPC is concerned. The allegations those are available from the recorded dying declarations do not attract the definition of cruelty, as contained in the Explanation and oral evidence of father regarding the same is inadmissible piece of evidence.

Date: 17.11.2005

8. So far as charge of murder is concerned, the prosecution relies upon dying declarations, two oral and two recorded. Two oral dying declarations are claimed to have been heard by PW 4 Vijay arid PW 3 Vasant (Police Patil and father), although on separate occasions. According to PW 4 Vijay, he had reached the location upon noticing crowd gathered in front of house of accused while he was about to proceed for his agricultural land. When he went at the location, deceased Sarla was lying on the ground partly covered with a cloth. This indicates that she was already extinguished by someone else. She was crying and on enquiry by Police Patll Vijay, she informed of having been set on fire by her husband (appellant). It is the claim of PW 4 Vijay that he informed all these details including inculpation of accused by the statement of deceased to PW 3 Vasant on telephone. Vasant claims to have heard the daughter once again in the hospital when she disclosed to father that husband had beaten her, poured kerosene on her person and set her on fire and thereafter husband had run away.

So far as written dying declarations are concerned, it is sufficient to record here that Exhibit 23 was recorded by Shri Devendra Patil, PSI attached to Zilla Peth Police Station, Jalgaon, and was treated as FIR. At the request of Police, Executive Magistrate Ramanlal (PW 9) recorded second dying declaration (Exh. 36). The two dying declarations are recorded with a time gap of 5 minutes; the first one between 13-20 to 13-40 hours and the second one between 13-45 to 14-00 hours. The fitness of the patient to make a statement was certified by Dr. Ulhas Taskhedkar (PW 11).

As already discussed hereinabove, the trial Court has found the dying declarations, oral as well as recorded, to be reliable and convincing and hence has recorded a finding of guilty.

9. Advocate Shri Chatterji has assailed the dying declarations by intrinsic as well as extrinsic material. According to him, none of the dying declarations are reliable There are inherent defects in the recorded dying declarations and there are circumstances on record in the form of subsequent conduct on the part of witnesses as also suppression on the part of prosecution to bring certain material before the Court, which make the dying declarations doubtful. In fact, he has taken his arguments to a stage to suggest the possibility of direct evidence, which is kept away from the Court and reliance is placed only on the dying declarations. Although he did not submit in so many words, he suggested that prosecution is suppressing the better piece of evidence and trying to ensure conviction by weaker piece of evidence i.e. dying declarations.

Learned counsel Shri Chatterji has placed reliance upon certain observations of the Supreme Court in the matter of P.V. Radhakrishna v. State of Karnataka AIR 2003 SC 2859. Although it is settled position that a dying declaration can be sole basis for conviction, because a person on death bed is in a situation so solemn and serene equal to obligation of oath and, therefore, requirements of oath and cross examination are also dispensed with and the dying declaration is a piece of evidence admitted on record without being tested on the touchstone of cross examination on the principle that “a man will not meet his maker with a lie in his mouth”, learned counsel took us to the caution sounded in para 14 of the judgment to following effect:

In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration Is only a piece of untested evidence and must like any dther evidence, satisfy the Court that what is stated therein is the, unallowed truth and that it is absolutely safe to act upon. If after careful scrutiny, the Court is satisfied that it Is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

It can be said that if the dying declaration inspires confidence of being truthful version of the maker and not a product of imagination or

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