2002 ALL MR (Cri) 94
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
J.N. PATEL AND S.K. SHAH, JJ.
Vasant Budha Shedmake Vs. State Of Maharashtra
Criminal Appeal No.132 of 1996.
25th September, 2001
Petitioner Counsel: Shri.M.R.DAGA
Respondent Counsel: Shri.LONEY
Evidence Act (1872), S.32 - Bride burning by husband - Accused committing offence under influence of liquor - Dying declaration recorded by Head Constable and another one by Naib Tahsildar - Declaration proved to be truthful - Conviction of accused could be sustained.
The dying declaration recorded by Head Constable and the endorsement put up by the Doctor appears to be quite natural. The memo prepared by Head Constable leaving space for Doctor to put his endorsement with regard to the certificate of fitness and it is thereafter Doctor has written, there is nothing wrong in it. There is nothing in the cross examination of both these witnesses to doubt their testimony. Further, merely because there is no endorsement of the Doctor, that would not render dying declaration as untrustworthy or unacceptable. The requirement of such endorsement is desirable under the Rule of Prudence but ultimately the test about the reality and acceptability of the dying declaration is its truthfulness and voluntariness. In the present case, there is nothing on record to suggest that the dying declarations made by the deceased were not voluntarily made by her or that they were tutored by somebody. Both the dying declarations appear to be quite true. The deceased had led 18 to 19 years married life with the accused. They had three children out of their marriage. There was no explanation as to why the deceased would be interested in falsely involving her husband. There was also no explanation as to why deceased would commit suicide. In absence of any explanation the dying declaration could not be held to be untruthful or not reliable. [Para 12,15]
Koli Chunilal Savji vs. State of Gujarat, 2000 SCC(Cri.)432 [Para 16]
S.K.SHAH, J. :- The appellant/accused challenges the order of conviction for the offence punishable under section 302 of the Indian Penal Code and sentence to suffer imprisonment for life and to pay a fine of Rs.500/- in default of the payment of fine to suffer R.I. for these months passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.63/95.
Deceased Jamunabai was married to the accused and out of about 17 to 18 years of the wedlock they had three children. They were residing at Ghantachowki with their family. The accused was allegedly addict to drinking liquor. The accused often used to make demand of money from his wife deceased Jamunabai who used to earn by doing labour work. There used to be quarrel between the two on this issue.
3. On 15.1.1995 at about 10.00 a.m., the accused came home under the influence of liquor. At that time, deceased Jamunabai alone was in the house. The children were playing outside. The accused told deceased Jamunabai that she was going for work but was not giving account of money she earns and threatened to kill her. Having said so, the accused poured kerosene on her person and set her on fire by striking match stick. The accused thereafter ran away. Deceased Jamunabai raised shouts, hearing which her elder son Navnath (P.W.2) rushed home and tried to extinguish the fire by pouring water on her person. By that time, her parents, paternal uncle and other villagers gathered there and they got her admitted to the General Hospital at Chandrapur at about 1 to 1.30 p.m.
4. It appears that before deceased Jamunabai's statement (Exh.57) came to be recorded by P.S.I., Kolhe and the offence came to be registered, her dying declaration came to be recorded by Head Constable Bhoyar (P.W.13) at about 2.00 p.m. It further appears that the second dying declaration came to be recorded by Naib Tahsildar Sudhakar (P.W.8) at about 4.10 p.m.
5. P.S.I., Kolhe (P.W.17) on getting information about deceased Jamunabai being admitted to the General Hospital, Chandrapur, he went to the Hospital and made enquiry with deceased Jamunabai and recorded her statement (Exh.57). He handed over that statement to P.S.I., Nigot (P.W.18) who registered the offence at Crime No.21/95 and took up the investigation. He immediately arrested the accused under panchanama (Exh.59). Deceased Jamunabai succumbed to the burning injuries at about 11.25 p.m. on the same day i.e. 15.1.1995. The charge was converted to one of murder. During the investigation, P.S.I., Nigot (P.W.18) prepared inquest panchanama (Exh.12) and sent the dead body for post mortem examination. He also sent the clothes of the deceased as also half burnt shirt of the accused alongwith the earth collected, to the Chemical Analyser for Chemical Analysis. During the investigation, he recorded the statements of the son of the deceased, parents of the deceased and other relatives of the deceased as also neighbours. After having completed the investigation and finding sufficient evidence against the accused for having committed murder of his wife Jamunabai, he forwarded the charge sheet to the Court of the Judicial Magistrate, First Class, Chandrapur, who in turn committed the same to the Court of Sessions, Chandrapur, as the offence was exclusively triable by the Court of Sessions.
6. During the trial, son and parents of deceased Jamunabai as well other relatives turned hostile to the prosecution. Two dying declarations as well as F.I.R. (Exh.57) were proved. The learned Sessions Judge found both the dying declarations truthful and voluntarily made and thus relying upon the same, found the accused guilty and thus passed the order of conviction and sentence which is assailed in this appeal.
7. That deceased Jamunabai died of burn injuries, is not in dispute. The Medical Officer Dr.Charania (P.W.16) had carried out autopsy on the dead body of deceased Jamunabai and prepared the report of the post-mortem examination which is at Exh.51. The report clearly indicates that except scalp there were burns all over the body which were to the extent of 95%. According to Dr.Charania (P.W.16) the cause of death was due to shock as a result of extensive burns. The defence did not challenge this aspect and, therefore, the findings arrived at by the learned Sessions Judge, Chandrapur that the death of deceased was caused as a result of 95% burn injuries, was correct. The same is also not challenged in this appeal.
8. As to the complicity of the accused in committing the offence viz. the accused having poured kerosene on deceased and setting her on fire, Shri Daga, learned Counsel for the appellant/accused vehemently submitted that there was serious doubt about two dying declarations allegedly recorded one by Police Head Constable and another by Naib Tahsildar. According to him, the close relatives of the deceased viz. her son Navnath (P.W.2), her mother Janabai (P.W.3), Pandurang (P.W.4) and her uncle Yadao (P.W.11) have given positive evidence to the effect that deceased had herself poured kerosene on her body and set her on fire and thus committed suicide, at which time nobody was in the house. It is, therefore, vehemently submitted that the evidence of the close relatives of the deceased being contrary to the dying declaration of the deceased herself which implicated the accused for having poured kerosene on her body and setting her on fire, was contrary to each other and, therefore, there was doubt. Secondly, the learned counsel appearing for the accused submitted that dying declaration at Exh.21 was without any endorsement from the Doctor about deceased being conscious and fit to give a statement, would be sufficient to discard the said dying declaration. There being no corroboration to the evidence of dying declaration, the learned counsel submitted that two dying declarations could not be accepted and relied upon. He further submitted that the deceased was having 95% of burns and, therefore, in all probability she must not have been conscious to make statement. Therefore, he vehemently submitted that it is the case of doubtful evidence and, therefore, benefit of doubt should be given to the accused.
9. As against this, the learned A.P.P. submitted that the theory of suicide has no basis in evidence. He further pointed out that the presence of the accused at the spot has been substantially established by the evidence and more particularly the shirt of the accused was partly burnt and traces of kerosene being positive on the shirt, established his presence. He further submitted that mere absence of endorsement of Doctor about the declarant being fit to give statement, would not render dying declaration untrustworthy, as it appears both the dying declarations corroborate each other and that the evidence stands further corroborated by the report of the chemical analyser. The learned A.P.P., therefore, fully supported the conviction and sentence passed against the accused by the learned Additional Sessions Judge.
10. The close relatives of the deceased viz. her son Navnath (P.W.2), mother Janabai (P.W.3) and father Pandurang (P.W.4) as well as her uncle Yadao (P.W.11) have turned hostile to the prosecution. They have given evidence in favour of the accused. According to them, at the time of incident deceased Jamunabai was alone in the house. They were all outside the house including the accused. Deceased Jamunabai suddenly shouted and came out of the house burning. It is thereafter that the accused and his son Navnath (P.W.2) extinguished the fire by pouring water on deceased Jamunabai's body. The witnesses, therefore, clearly exculpate the accused. However, this evidence has rightly been discarded by the learned Sessions Judge. This evidence is totally contrary to their previous statement before the police which was in favour of the prosecuting and implication the accused. Moreover, these witnesses have admitted in the cross examination by the prosecution that they had feeling that the accused should not be convicted. These witnesses, therefore, have no regard for truth and no reliance can be placed on their evidence. It appears that they are trying to believe in fate accompli and tried to save the accused and his 3 children from being rendered orphan if the accused gets convicted. No credence can be given to the evidence of these witnesses. As such it is clear that there is no eye witness to the incident. The case of the prosecution, therefore, rests solely on two dying declarations. The first, in point of time, came to be recorded at about 2.00 p.m. by the Head Constable Bhoyar (Exh.13). According to him, on the day of incident, he was the Head Constable attached to the Outpost at the General Hospital Police Station City, Chandrapur. He received memo from the Medical Officer, General Hospital, Chandrapur about deceased Jamunabai being admitted at the Hospital at about 1.30 p.m. and she had 90% of burns. He immediately rushed to the patient i.e. deceased Jamunabai. He requested the Doctor to examine the patient and certify that the patient i.e. deceased Jamunabai was fit to give statement. After the Doctor certified that she was fit to give statement, he recorded her statement as per her narration. Head Constable Bhoyar (P.W.13) stated that deceased Jamuna told him that her husband often used to consume alcohol and that her husband poured kerosene on her person and set her on fire. The said dying declaration is at Exh.21. It is in question answer form. In the said dying declaration, the deceased stated that the incident occurred at about 10.00 a.m. on that day. She further stated that since 2-3 days, her husband viz. Vasant Shedmake was coming home under influence of liquor. On 15.1.1995 at about 10.00 a.m. he poured kerosene on her person and set her on fire by striking match stick. There was no one in the house at that time. Thereafter, her husband ran away.
11. In support of this evidence, there is evidence of Dr.Vivek Dandekar (P.W.7). According to him, at the request of the Head Constable, he examined the patient and certified that she was fit to give statement. He had made such endorsement on the dying declaration. Dr. further stated that Head Constable recorded the statement and again he examined the patient i.e. deceased Jamunabai after the recording of statement was over and found her to be fit and again recorded the same at the foot of the dying declaration. The evidence of Head Constable, Bhoyar (P.W.13) stands fully corroborated by Dr.Dandekar (P.W.7). The perusal of the original dying declaration (Exh.21) would indicate that there is an endorsement put by the doctor to the effect that the patient is conscious and fit to give her statement.
12. The learned counsel for the accused tried to submit with regard to this dying declaration that it appears that the endorsement has been put subsequently as the endorsement is in different ink than the ink of the dying declaration. He further submitted that very less space was left between the writing of the Head Constable and endorsement put by the Doctor. However, we do not find any substance in this submission. The dying declaration recorded by Head Constable Bhoyar (P.W.13) and the endorsement put up by the Doctor appears to be quite natural. The memo prepared by Head Constable Bhoyar leaving space for Doctor to put his endorsement with regard to the certificate of fitness and it is thereafter Doctor has written, there is nothing wrong in it. There is nothing in the cross examination of both these witnesses to doubt their testimony. The subsequent preparation of dying declaration or putting endorsement by the doctor, has not been even suggested to the Doctor or even Head Constable Bhoyar for that matter. This dying declaration was first in point of time and recorded almost immediately after the deceased came to be admitted to the Hospital at about 1.20 p.m.. This dying declaration, therefore, was truthful and voluntarily made by the deceased. The same is, therefore, fully relied upon.
13. The second dying declaration came to be recorded at about 4.10 p.m. on the same day. That was recorded by the Naib Tahsildar Rotkar (P.W.8). According to Rotkar (P.W.8) he received requisition letter from the Police Station to record the statement of the burnt patient Jamunabai. The letter is at Exh.24. He, therefore, went to the Hospital and requested the Doctor to examine the patient and to certify if she was fit to give statement. After Doctor certified that said Jamunabai to be fit to give statement, P.W.8 Rotkar states that, he recorded the statement of deceased Jamunabai as per her narration and in presence of the Doctor. That dying declaration is at Exh.25. It is in question - answer form. It clearly implicates the accused. The dying declaration reads as under :
"My husband viz. Vasant used to come home daily after consumption of liquor and abuse. Similarly, he used to beat me. If, I refused to give him money, he used to quarrel with me and demand money. On 15.1.1995 at about 10.00 a.m. in the morning, my husband under the influence of liquor, came home as usual when I was at home. He abused me and poured kerosene on my person and set me on fire. My, all the three children were playing in the lane. As I shouted, my elder son Navnath came running and poured water on my person and extinguished me. Hence, action be taken against my husband."
14. In support of this evidence, the Doctor who has examined deceased Jamunabai, has given evidence. He is Dr.Sanghai (P.W.12). According to Dr.Sanghai (P.W.12), on 15.1.1995 he was a Medical Officer attached to General Hospital, Chandrapur. One Jamunabai w/o Vasant Shedmake was brought to the Hospital in burn condition at 1.20 p.m. He informed the police to arrange for her statement. He further stated that he received the requisition letter from the Executive Magistrate to know if the patient is fit to give statement and accordingly recorded the certificate. After the statement was recorded, he again examined deceased Jamunabai and recorded the statement on having found her fit. That dying declaration is at Exh.25. It is with regard to this dying declaration that aforesaid submission came to be made on behalf of the accused. That Dr.Sanghai(P.W.12) has stated that he had recorded the certificate about the fitness of Jamunabai to give statement. Such endorsement does not appear on the dying declaration Exh.25. However, as appears, on the dying declaration, his only signature at the beginning which was put at 4.10 p.m. and at the end which was put at 4.35 p.m.. The recording of the time by the Doctor itself indicates that he was present during the course of recording of dying declaration of deceased Jamunabai.
15. In view of the contentions raised on behalf of the accused, the question that needs to be considered, is whether as a result of the absence of the endorsement about the patient being conscious and fit to give statement, would render the dying declaration untrustworthy and unacceptable. In our considered view, we do not accept this submission made on behalf of the accused. Merely because there is no endorsement of the Doctor, that would not render dying declaration as untrustworthy or unacceptable. The requirement of such endorsement is desirable under the Rule of Prudence but ultimately the test about the reality and acceptability of the dying declaration is its truthfulness and voluntariness. In the present case, there is nothing on record to suggest that the dying declarations made by the deceased were not voluntarily made by her or that they were tutored by somebody. Both the dying declarations appear to be quite true. The deceased has led 18 to 19 years married life with the accused. They had three children out of their marriage. The learned counsel for the accused was unable to show as to why the deceased would be interested in falsely involving the accused. The learned counsel for the accused also failed to point out any reason why deceased Jamunabai would commit suicide. In absence of these explanations, we do not find the dying declarations to be untrustful or not reliable.
16. In the case of Koli Chunilal Savji and another vs. State of Gujarat, reported in 2000 Supreme Court Cases (Cri.) 432. The Apex Court while dealing with the submission made before it, about it being the duty of the person who recorded the dying declaration in presence of the Doctor, to get the certificate endorsed from the Doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration, made following observations;
"But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander vs. State of Punjab this Court has held that for non examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise."
17. In the instant case before us, the only lacuna was with regard to the second dying declaration and that lacuna was there being no endorsement by the Doctor about the patient i.e. deceased Jamunabai being conscious and fit to make statement. The Prosecution had, therefore, examined the Doctor Sanghai (P.W.12) himself who had given positive evidence that he had examined deceased Jamunabai before her dying declaration came to be recorded by the Naib Tahsildar Rotkar (P.W.8) and found her to be fit to make a statement. He also examined her after her statement was recorded and found her to be fit. This evidence of Dr.Sanghai has gone totally unchallenged. In the cross examination the only question that was put, was that certificate was not appearing at Exh.25 which the Doctor only admitted. Doctor's evidence about deceased Jamunabai being fit to make statement at the time when the second dying declaration was recorded, had gone unassailed. Apart from this, in the present case the very first dying declaration was correctly recorded though by the Head Constable. There is no rule of law that the Head Constable is ineligible to record the dying declaration. The first dying declaration was correctly recorded. Doctor Dandekar (P.W.7) had examined deceased Jamunabai and found her to be fit to give statement and such endorsement was also made on the dying declaration before her statement was recorded and also after her statement came to be recorded.
18. The another corroborating factor to the dying declaration, was the test of detection of kerosene on the shirt Article no.6, that was sent to the Chemical Analyser, was found to be positive as per Chemical Analysis Report Exh.62. There is no explanation as to how this kerosene test was found to be positive in respect of the half burnt shirt of the accused. This was possible only when the accused himself had poured kerosene on the deceased and during the course, some kerosene must have spilt on his own shirt. Besides the presence of the accused being duly established at the time of the incident, this particular circumstance fortifies the dying declaration to the effect that it was the accused who poured kerosene on the deceased and set her on fire.
19. Under these circumstances, we do not find any merit in the appeal filed by the accused. We, therefore, confirm the order of conviction and sentence passed by the learned Additional Sessions Judge, Chandrapur and dismiss the appeal.