Criminal Appeal No.283 of 1996

5th July, 2001

Petitioner Counsel: Mr.VIJAY SHARMA, Mr.C.P.SENGAONKAR
Respondent Counsel: Mr.S.V.CHILLARGE

Cases Cited:
Khushal Rao vs. State of Bombay, A.I.R.1958 S.C.22 [Para 22]

JUDGMENT

VISHNU SAHAI, J. :- Through this Appeal, the Appellant challenges the judgment and order dated 30th March 1996 passed by the Additional Sessions Judge, Aurangabad, in Sessions Case No.223 of 1995, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.300/-, in default to undergo three months R.I., for the offence punishable under section 302 of the Indian Penal Code.

2. Shortly stated, the prosecution case runs as under.

At the time of the incident, the Appellant Sadashiv Gangadhar Gavande was residing along with his wife, deceased Dwarkabai, and their three children in a room in the house of his father in law situated at Isarwadi, taluka Paithan, district Aurangabad. The Appellant was serving as a fieldman in a sugar factory. He was addicted to liquor and in a drunken condition used to assault his wife, deceased Dwarkabai. Initially, Dwarkabai complained about the conduct of the Appellant to her brother, Dattatraya, P.W.3 and other family members, but finding no account of the ill-treatment meted out to her by the Appellant, Dwarkabai had lodged two non-cognisable complaints against him.

On 11-2-1995, at about 12 - 12.30 noon, while Dwarkabai was preparing food on a stove in a room in her father's house in Isarwadi, taluka Paithan, the Appellant, in a drunken condition, came and inquired from her why loan had not been taken for the purposes of sugarcane crop. He immediately thereafter poured kerosene oil on her from a plastic can and set her on fire by taking out a match stick from a match box. Dwarkabai started shouting that the Appellant had set her on fire. Hearing her cries, Ramnath Bobade, P.W.1, the cousin brother of her father Raghunath, and Dattatraya, P.W.3, her real brother, who were living in immediate proximity came. Ramnath, on finding that Dwarkabai was precariously burnt, wrapped her in a quilt and thereafter, Dattatraya brought a rickshaw wherein Dwarkabai was removed to Paithan hospital.

3. The evidence of H.C. Eknath Gaikwad, P.W.8, shows that on 11-2-1995, he received a phone call from P.S.O., Police Station, Paithan, that one Dwarkabai, who suffered 65% burns, was admitted in the hospital. He was telephonically informed that he should send a constable to the hospital. Consequently, he sent P.H.C. Rathod, P.W.10, to the said hospital.

4. The evidence of P.H.C. Ganpat Rathod P.W.10, shows that he proceeded to Government Hospital, Paithan, where he gave a letter to the Medical Officer, Dr.Suryakant Sonkhedkar, P.W.4, inquiring whether Dwarkabai was in a position to give her statement. The said letter is at Exhibit 16.

5. The evidence of Dr.Suryakant Sonkhedkar, P.W.4, shows that he gave medical treatment to Dwarkabai and made an endorsement on Exhibit 16 that Dwarkabai was in a condition to give a statement. Thereafter, H.C. Rathod recorded her statement in his presence. At that time, Dwarkabai was speaking properly. After her statement had been recorded, he signed on the same. The endorsement given on the said statement is at Exhibit 17. The said statement is at Exhibit 41. The said statement has been recorded in Marathi. Since, in our view, it is a crucial piece of evidence, on which conviction of the Appellant is founded, we are reproducing its English translation, which reads thus :

"Today, on 11-2-1995, at about 12.30 noon, while I was cooking food on a stove, my husband Sadashiv Gangadhar Gavande, who was drunk, came and asked me as to why I had not taken loan. Saying this, he poured kerosene oil from plastic can on my person and set me on fire with a match stick. I screamed, Vachava, Vachava (Save, Save), my husband has set me on fire. On the cries, my uncle Ramnath Bobade came. He opened the latch of the door and extinguished the fire and thereafter my brother Dattatraya Rokade came. I told my brother about the incident. Thereafter my brother and my uncle brought me to Paithan. My husband has poured kerosene on my person and set me on fire."

The endorsement, Exhibit 17, made by Dr.Sonkhedkar reads that, "the statement has been recorded in my presence".

6. It is pertinent to mention that Exhibit 41 has been treated to be the F.I.R. in the instant case and on its basis, CR.No.20/1995 under sections 307, 342 read with section 34 of the Indian Penal Code was registered by P.S.I. Madhukar Aute, P.W.11, at M.I.D.C. Police Station, Paithan.

7. From the evidence on record, it appears that since the condition of Dwarkabai was precarious, she was sent from Government Hospital, Paithan, to Ghati Hospital at Aurangabad.

From the evidence of Dr.Arun Varvale, P.W.7, it appears that Dwarkabai was admitted in the said hospital at about 4.45 p.m. on 11-2-1995. After Dwarkabai was admitted, he asked her the case history and she replied that her husband had set her on fire.

8. We may straightaway mention that we are not inclined to place reliance on this case history as a dying declaration, because its perusal shows that it was not given by Dwarkabai alone but jointly by her and her brother.

9. The evidence of P.H.C. Ganpat Rathod, P.W.10, shows that on learning that Dwarkabai had been sent to Ghati Hospital, Aurangabad, he came to the said hospital and gave a letter, Exhibit 36, to the Special Executive Magistrate for recording the dying declaration of Dwarkabai. His evidence shows that he gave another letter, exhibit 37, to Dr.Prashant Bhovare, P.W.12, of the same hospital wherein the doctor was asked whether Dwarkabai was in a fit condition to make a statement. Dr.Bhovare received the said letter at 11.15 p.m. and went to Ward No.20, where Dwarkabai had been admitted. He examined her and found her in a condition to give a statement. This endorsement is incorporated in the letter at Exhibit 37 and the original letter and endorsement is at Exhibit 51.

10 The evidence of Subhashchandra Mehra, P.W.9, the Special Executive Magistrate, shows that on 11-2-1995 at about 11 p.m., H.C. Rathod, P.W.10, came and gave him a letter, Exhibit 36, requiring him to record dying declaration of a woman, who had received burns. Consequently, he went to Ward No.20 of the Ghati Hospital, where the said woman was admitted and told the doctor that he wanted to record a dying declaration, whereupon the doctor told him that the constable had given a letter whereupon he will make an endorsement. The carbon copy of the said letter and of the endorsement thereon is at Exhibit 37. The endorsement is in terms that the patient is conscious and in a state to give statement. The doctor also told Special Executive Magistrate Mehra that the patient was conscious and in a position to give the statement. Special Executive Magistrate Mehra also himself ascertained from the patient whether she was in a fit condition to give her statement. At that time, the Special Executive Magistrate, Mehra, the doctor and the declarant were there. Other relations were asked to go. Special Executive Magistrate Mehra asked her and thereafter recorded her dying declaration, which is in question and answer form. A perusal of the dying declaration would show that in reply to the questions, whom do you suspect; how did you sustain burns; whether anybody has beaten you; and what has happened to you, the declarant Dwarkabai replied in Marathi, the English translation being as under :

"At 12 noon, my husband Sadashiv came in a drunken condition and told me that he has to secure loan for sugarcane crop and I should sign on the documents and since I refused to sign thereon, he latched the door, poured kerosene oil on me and set me on fire. He thereafter ran away. My uncle, Ramnath, and myself extinguished the fire by pouring water."

At the bottom of the dying declaration, it is mentioned that since both the hands were burnt, the impression of toe was taken.

11. The evidence shows that Dwarkabai succumbed to her injuries in Ghati Hospital, Aurangabad. The post mortem was performed. The post mortem report, Exhibit 9, was prepared and its perusal shows that she died on account of 68% superficial to deep burns.

12. The case was investigated in the usual manner by P.S.I. Madhukar Aute, P.W.11. On 15-2-1995, he arrested the Appellant vide arrest panchnama, Exhibit 10. There were some injuries on his person. Consequently, he sent him for medical examination to the Medical Officer, Health Unit, Paithan, who examined him the same day at 6.30 p.m. and found on his person five abrasions, attributable to a hard and blunt object, caused within six days, simple in nature and distributed between fingers, elbow, right shoulder joint and front of right thigh. On completion of the investigation, P.S.I. Aute submitted the charge sheet against the Appellant in the Court of J.M.F.C., Paithan, on 29-4-1995.

13. The case was committed to the Court of Sessions in the usual manner, where the Appellant was charged for an offence punishable under section 302 of the Indian Penal Code, to which charge he pleaded not guilty and claimed to be tried.

During trial, in all the prosecution examined 11 witnesses. We may straightaway mention that there is no eye witness of the incident and the conviction of the Appellant for the offence punishable under Section 302 of the Indian Penal Code is founded on two dying declarations, namely, those recorded by P.H.C. Rathod, P.W.10, and S.E.M. Mehra, P.W.9, which have seen believed by the trial Court.

14. Being aggrieved by the said conviction and sentence, the Appellant has preferred the present Appeal.

15. We have heard learned Counsel for the parties and perused the entire evidence on record. We are constrained to observe that we do not find any merit in this Appeal.

16. This Appeal illustrates how fragile human relationships are. We say this because both Ramnath, P.W.1, and Dattatraya, P.W.3, the maternal uncle and real brother of the deceased respectively, in their statements under section 161 of the Code of Criminal Procedure, with which they were confronted during the course of their cross examination, had stated that when they reached the place of the incident, deceased Dwarkabai had told them that the Appellant had poured kerosene oil on her and set her on fire, but in their statements in the trial Court, disowned having made the said portions in their statements under section 161 of the Code of Criminal Procedure.

17. Fortunately, in this case, the evidence of Ramnath and Dattatraya was not the only evidence, but, as we have mentioned above, there were two dying declarations, which the deceased had made to P.H.C. Rathod, P.W.10, and S.E.M. Mehra, P.W.9, respectively.

We now propose examining the said dying declarations.

18. We begin with the declaration recorded by P.H.C. Rathod. In the earlier part of our judgment, we have given the circumstances in which P.H.C. Rathod recorded this dying declaration of Dwarkabai in Paithan hospital and we do not want to burden our judgment by reiterating the said facts. A perusal of the statement of P.H.C. Rathod, to which we have referred to earlier, shows that after ascertaining from the doctor whether Dwarkabai was in a fit condition to make a statement and after the doctor replying in the affirmative, he recorded her statement. In this connection, it would be pertinent to refer to the statement of Dr.Suryakant Sonkhedkar, P.W.4, who categorically stated that he had made an endorsement on the letter given to him by P.H.C. Rathod that Dwarkabai was in a position to give a statement and in his presence, P.H.C. Rathod recorded her statement and Dwarkabai was speaking coherently and properly. He has also stated that, after her statement had been recorded, her toe impression was taken and he had signed the same.

It is pertinent to mention that both P.H.C. Rathod and Dr.Sonkhedkar were subjected to extensive cross-examination, but nothing could be extracted therefrom which would create even an iota of doubt in our minds regarding the factum of P.H.C. Rathod inquiring from Dr.Sonkhedkar whether Dwarkabai was in a position to give the statement and his replying to it in the affirmative.

We have earlier mentioned that the doctor's certificate that she was in a fit condition to give a statement is at Exhibit 16 and his endorsement is at Exhibit 17.

Earlier, we have reproduced the English translation of the said statement and its perusal shows that Dwarkabai has categorically stated therein that on 11-2-1995 at about 12.30 noon, while she was preparing food, the Appellant under the influence of liquor came and after inquiring from her as to why she had not taken loan, poured kerosene oil from a plastic can on her person and set her on fire.

19. The learned Counsel for the Appellant strenuously urged that a perusal of Exhibit 17 would show that the endorsement given by Dr.Sonkhedkar is only in terms that the statement had been recorded in his presence and not in terms that the declarant was in a fit and proper condition to make the statement and she was all along conscious while making it.

It is true that the endorsement contained in Exhibit 17 only mentions the presence of Dr.Sonkhedkar, but we find no good reason to disbelieve Dr.Sonkhedkar that the declarant was in a fit condition to give the statement, because the said endorsement is contained in Exhibit 16. It is pertinent to mention that there was no reason for Dr.Sonkhedkar to give false evidence against the Appellant or evidence in favour of the prosecution, because no animus against the former and no reason as to why he was biased in favour of the latter, has been brought out from his cross examination.

Apart from it, he has categorically stated in his deposition in the trial Court that the declarant Dwarkabai was speaking properly.

For the said reasons, we reject this criticism.

20. In our judgment, the dying declaration of Dwarkabai recorded by P.H.C. Rathod inspires implicit confidence.

21. We now come to the dying declaration of Dwarkabai recorded by S.E.M. Mehra, P.W.9. We have earlier seen that after ascertaining from Dr.Bhovre, P.W.12, vide Exhibit 37, that Dwarkabai was in a fit and conscious condition to give a statement, S.E.M. Mehra, P.W.9, recorded the statement. It is pertinent to mention that a perusal of Exhibit 37 bears the said endorsement of the doctor. That apart, we find it pertinent to mention that S.E.M. Mehra before recording it, also himself put questions to Dwarkabai to ascertain her fitness and it was only thereafter he recorded her said statement. We have earlier seen that the statement, Exhibit 37, was in question and answer form (the original was in Marathi) and its English translation shows that in response to the questions, whom do you suspect, how did you sustain burns, whether anybody has beaten you, what has happened to you and who set you on fire, the declarant replied that at about 12 noon, her husband came in a drunken state, told her that he has to secure loan for a sugarcane crop and she should sign on the documents and on her refusal, latched the door, poured kerosene oil on her person and burnt her. He thereafter ran away. She herself ran to Ramnath, who poured water on her burns. A perusal of the said dying declaration would show that it unambiguously fixes the Appellant as the person who had killed the deceased.

22. The Supreme Court in paragraph 16 of the oft-quoted case of Khushal Rao vs. State of Bombay, reported in A.I.R. 1958 S.C.22, has observed thus :

"a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, ....."

23. The learned Counsel for the Appellant strenuously urged that the evidence of S.E.M. Mehra to the effect that the doctor was along with him in the ward cannot be accepted, because Dr.Bhovare, P.W.12, has not stated so. It is true that Dr.Bhovare, P.W.12, has not stated so. However, in our judgment, this would make no difference, because what Dr.Bhovare has stated is that P.H.C. Rathod came to him at about 11.15 p.m. on 11-2-1995, gave him a letter (Exhibit 37) whereupon he gave an endorsement that Dwarkabai was in a condition to give the statement. It is also pertinent to mention that the statement of S.E.M. Mehra, P.W.9, shows that prior to his recording the statement of Dwarkabai, he had received the endorsement on Exhibit 37.

The thing to be borne in mind is that before recording the dying declaration, it should be clear that the declarant was in a fit and conscious condition to make the declaration. Since in this case, the said evidence is there, and we also have the evidence of S.E.M. Mehra in terms that in order to ascertain whether Dwarkabai was in a position to giver her statement, he had asked her certain questions, the circumstance pointed out by the Appellant's Counsel is inconsequential.

24. After the utmost circumspection, we have not been persuaded to accept that there is any infirmity in the dying declaration of Dwarkabai recorded by S.E.M. Mehra. In our view, it inspires confidence.

25. For the said reasons, in our judgment, the learned trial Judge acted correctly in convicting the Appellant on the basis of the said dying declarations for the offence punishable under section 302 of the Indian Penal Code.

26. In the result, we confirm the conviction and sentence of the Appellant for the offence under section 302 of the Indian Penal Code and dismiss this Appeal.

The Appellant is in jail and shall serve out his sentence.

Before parting with the judgment, we would like to put on record the extremely able assistance rendered to us by Mr.Vijay Sharma, learned Counsel for the Appellant.

Appeal dismissed.