2003 ALL MR (Cri) 2222
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.B. GAIKWAD, J.

Deepak Baburao Jawle Vs. State Of Maharashtra

Criminal Appeal No.385 of 2003

29th August, 2003

Petitioner Counsel: Shri. S. S. WAGH
Respondent Counsel: Shri. N. S. BORADE

Penal Code (1860), S.304, Part II - Culpable homicide not amounting to murder - To spell out the offence under S.304 Part II of I.P.C. the offence must be either under S.299 or under any of the exceptions as given in S.300 of I.P.C. AIR 1958 SC 22 - Referred to. (Para 18)

Cases Cited:
Khushal Rao Vs. State of Bombay, AIR 1958 SC 22 [Para 13]


JUDGMENT

JUDGMENT :- The appellant, dissatisfied with the judgment and order convicting him under Section 304-II of Indian Penal Code (IPC) and directing him to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default, to undergo rigorous imprisonment for the six months, passed by the learned Additional Sessions Judge, Osmanabad on 15-6-2003 in Sessions Case No.123 of 2002, has filed the present appeal.

2. The facts in the nut shell are that:

The appellant is the resident of village Jagji, taluka and district Osmanabad. However, since two years prior to the incident, he was residing at Pune and working as Painter. Deceased Rajkanya was having illicit intimacy with the appellant for last two years and it is alleged that it was decided by them to perform the marriage. Parents of Rajkanya had no objection therefor but the parents of appellant were opposed to it.

A day prior to the occurrence, it is alleged that appellant had gone to Latur with Rajkanya for purchases.

On 26-6-2002, at about 6 p.m. Rajkanya was at the parents house, situated infront of the house of appellant's parents. She was alone in the house. Her parents and brother had gone to field. Appellant insisted her to accompany him to Pune but Rajkanya refused to accede his request saying that he should first marry with her and thereafter take her to any where. It is further alleged that some exchange of words took place. Appellant got annoyed due to refusal of Rajkanya to accompany him. He poured kerosene on her person and set her ablaze. She sustained burn injuries. The appellant tried to extinguish the fire and in that attempt he also sustained injuries. The incident was informed to parents of Rajkanya. Rajkanya was immediately taken to Murud Hospital and thereafter, as per the advice of Doctor she was shifted to Civil Hospital, Osmanabad. Equally, the appellant was also taken to Primary Health Center, Murud and thereafter, shifted to Civil Hospital, Osmanabad.

It is further seen from the record that when Rajkanya was admitted in the Civil Hospital, Osmanabad. Dr. Munde who was on duty, informed the Head Constable, on duty at Police Out Post at Civil Hospital. PW 1 Kazi. Police Head Constable accordingly visited victim Rajkanya, ascertained her condition through Dr. Munde and on certification by Dr.Munde that she is in a position to give statement, he recorded statement of victim. Rajkanya disclosed in the said statement that appellant set her on fire by pouring kerosene on her person because she refused to accompany him to Pune. Said statement itself was treated as first information report. Accordingly, Crime No.0 of 2002 was registered at Police Station, Osmanabad and as the offence was taken place within the jurisdiction of Police Station Dhoki, the complaint was transferred to the said police station.

3. On the next day, Special Judicial Magistrate was requisitioned by the police authorities, who recorded the statement of Rajkanya, in which she has again narrated the incident and the manner in which it took place. During the course of investigation, statements of certain witnesses were recorded. Rajkanya, ultimately, succumbed to the burn injuries on 2-3-2002. The police, accordingly, added Section 302 of IPC. Inquest was held and the dead body was referred for post mortem. The medical officer performed post mortem and given cause of death of Rajkanya as death due to burn injuries to the extent of 70%.

4. Police Sub Inspector, Police Station Dhoki, after completing the investigating, submitted charge sheet against the appellant and his brother for the offences under Sections 302 read with 34 of IPC. During the course of investigation, it was revealed that there are allegations against the brother of the appellant and therefore, he came to be arrayed as accused.

5. The learned Judicial Magistrate F.C. committed the case to the court of sessions as the offence under Section 302 of IPC was exclusively triable by the Court of Sessions.

6. The learned Additional Sessions Judge accordingly framed charge at Exhibit 9 on 18-12-2002 for the offence under Section 302 read with Section 34 of IPC against the appellant and his brother. Both pleaded not guilty and claimed to be tried.

7. The prosecution to connect the accused with the aforesaid crime, examined ten witnesses. PW 1 Kazi (Exhibit 20) is the Police Head Constable, who recorded statement of Rajkanya on 26-2-2002 (Exhibit 21), which is the basis for registration of the crime. Post mortem report is at Exhibit 22. The correctness of the post mortem notes has not been disputed on behalf of the accused. PW 2 is Dr. Birajdar (Exhibit 23), who examined the appellant and certified about the burn injuries sustained by him, Certificate is Exhibit 24. PW 3 is Kakade, Special Judicial Magistrate (Exhibit 25), who recorded statement of Rajkanya (Exhibit 26), PW 4 is Savant (Exhibit 31), who is father of victim Rajkanya, PW 5 Varkate (Exhibit 32), PW 6 Garad (Exhibit 34), and PW 7 Gadave (Exhibit 35) are the panch witnesses. PW 5 Varkate is the panch of inquest. Correctness of the same is not disputed. PW 6 Garad and PW 7 Gadave have turned hostile and the spot panchanama Exhibit 37 was got proved through PW 8 Shaikh. PW 8 Shaikh (Exhibit 36) is the Investigating Officer. Chemical Analyser's report is at Exhibit 38. Statement of Rajkanya recorded by the Investigating Officer is brought on record by the defence and the same is at Exhibit 39, PW 9 Dr. Munde (Exhibit 42) and PW 10 Dr. Rajgure (Exhibit 43) are the Medical Officers in whose presence, dying declaration Exhibits 21 and 26 were recorded, after ascertaining the condition of Rajkanya.

8. The learned Additional Sessions Judge after considering the evidence on record, concluded that the appellant/accused No.1 committed offence under Section 304-II of IPC and accordingly directed him to suffer sentences as narrated in the first para. Accused No.2 was however, acquitted holding that involvement of the accused No.2 was outcome of the improvement in the dying declaration by Rajkanya and therefore, benefit of doubt was given to the accused No.2. Aggrieved by the said judgment of conviction and sentence, the present appellant has filed this appeal.

9. In appeal, I heard Shri. Wagh, Advocate for the appellant and Shri. Borade, APP for the State at length.

10. According to Shri. Wagh the order passed by the learned Additional Sessions Judge holding the appellant guilty under Section 304-II of IPC is not justified and proper, same is not in conformity with the evidence on record.

Secondly, according to him, the Court below has wrongly, relied upon the dying declarations Exhibits 21 and 27. According to him, if these two dying declarations if read together with the statement of Rajkanya recorded by Investigating Officer Exhibit 39, it appears that there are material improvements as regards the factual aspects and the incident. He further submits that when the said dying declarations are discarded and not accepted by the learned Additional Sessions Judge in respect of the accused No.2, it ought to have been discarded as against the appellant also. However, the court below has committed an error in accepting the said against the appellant.

Thirdly, according to him, there was no scope for Rajkanya to give such detailed statement in respect of the incident, taking into consideration her condition and further considering her fact that she sustained near about 70% burn injuries.

Fourthly, according to him, the dying declaration ought to have been recorded by the concerned authorities in question and answer form. However, the dying declaration is not in narrative form and the Court below has wrongly relied upon the said dying declaration.

Fifthly, according to him, the prosecution has not examined material witnesses as Rajkanya was immediately taken to hosptial at Murud. It was necessary for the prosecution atleast to examine the Doctor, who advised to take Rajkanya for further treatment. Even the admission papers admitting Rajkanya in the said hospital are also not brought on record as she would have given history in respect of the burn injuries sustained by her and the Doctor who admitted her should have recorded as regards cause of burn injuries and therefore, he requested that adverse inference may be drawn in that respect.

Sixthly, according to him, there is delay in filing the complaint, which remained unexplained. He further submits that at any rate, even if the evidence on record is accepted as it is, in that case, no offence is spelt out under Section 304-II of IPC as from the circumstances on record, no intention can be gathered. At the most if the evidence is relied, the act on the part of the appellant can be termed as voluntary act and the offence will be at the most under Section 324 of IPC. He, therefore, submits that the findings recorded by the Court below convicting the appellant is not proper. He requested to set aside the judgment and order of conviction.

11. On the other hand, it is submitted by Shri. Borade, APP that the order of conviction and sentence is proper and justified.

12. Considering the submissions made on behalf of the parties to the appeal, it is necessary to see whether the findings recorded by the court below are proper and justified.

13. At the outset, it is necessary to make it clear that the prosecution case solely depends upon the dying declarations of Rajkanya. First recorded by PW 1 Kazi, Head Constable Exhibit 21, second recorded by PW 3 Kakade, Special Judicial Magistrate Exhibit 26 and third, which is brought on record by the defence which is at Exhibit 39. Before considering the evidence on record, a reference to my mind is necessary to the decision in the case of Khushal Rao Vs. State of Bombay (AIR 1958 SC 22), so as to consider whether the sole dying declaration, if relied upon, is sufficient to convict the accused. It is observed in the said authority to the following effect :

"In order to pass the test of reliability, a dying declaration has to be has to be subjected to a very close scrutiny. Keeping in view of the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from such other infirmities."

It is further held:

"It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; that 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 he infirmities of human, memory and human character."

Thus, considering the above parameters, so as to scrutinise the dying declaration, it is now necessary to consider the dying declarations Exhibits 21,26 and 39 and oral dying declaration made by Rajkanya to her father (PW 4 Savant). It is necessary to see whether those dying declarations are consistent as regards involvement of the appellant, whether the dying declarations suffer from any infirmities, whether there is any scope of tutoring, whether she was in a fit condition to give such dying declaration and further to see whether there is any scope to involve the appellant falsely at the instance of some other persons and lastly, whether the said dying declarations are made at the earlier point of time.

14. Considering the above factors, firstly, a reference is necessary to the oral dying declaration made by Rajkanya to her father PW 4 Savant. So far as other factors are concerned, it is not in dispute that the appellant was having intimacy with Rajkanya. It is also not in dispute that family members of the appellant were opposed to the said relationship and their marriage. It is also necessary to mention the fact that at the relevant time when the incident took place, appellant was present at the house of Rajkanya. It appears from the contention of the appellant that initially he was on the door of his house and after hearing shouts raised by Rajkanya, he proceeded to her house. As against this, it is the contention in the dying declaration that the appellant already came at the house of Rajkanya, insisted her to accompany him to Pune and on her refusal the appellant poured kerosene on her person and set her on fire. Thus the fact that the appellant was there at the relevant time is not much disputed and this fact is again followed by the evidence of PW 2 Dr. Birajdar, who has examined the appellant in respect of the burn injuries sustained by him.

15. In the said oral dying declaration Rajkanya disclosed to her father that appellant poured kerosene on her person and set her on fire. She was immediately taken to hospital at Murud and as per the advice of Doctor, she was immediately shifted to Civil Hospital, Osmanabad. The record further shows that at about 11 p.m. she was admitted in the hospital on 26-2-2002. Dr. Munde (PW 9) was on duty. He admitted Rajkanya, gave intimation to the police out post located in the Civil Hospital and PW 1 HC Kazi, immediately went to Burn Ward. On certification of Dr. Munde that victim is in position to give statement, he recorded her statement, in which she disclosed about the incident, the manner in which it took place and she has specifically contended that the accused was insisting her to accompany him to Pune. She further disclosed that unless the marriage is performed she will not accompany and on her refusal he poured kerosene on her person and set her on fire due to which she sustained burn injuries. On perusal of this dying declaration I find that the same is trustworthy, acceptable and convincing. Further evidence of PW 9 Dr. Munde makes it clear that she was in a condition to give the statement. If the evidence of PW 1 Kazi and PW 9 Dr. Munde is read along with Exhibit 21, I find that the said dying declaration does not suffer from any infirmity.

16. Second dying declaration (Exhibit 26) is recorded on 27-2-2002 by PW 3 Kakade, Special Judicial Magistrate. It is true that the Special Judicial Magistrate was expected to record the dying declaration in question and answer form. However, he has narrated the same in narration form. But this cannot be a ground to discard the said statement. One has to see whether the said dying declaration is consistent with the earlier dying declaration in respect of the material particulars and so far as regards involvement of appellant in the said crime. I find on close scrutiny of evidence of PW 3 Kakade read together with PW 10 Dr. Rajgure, who examined the condition of Rajkanya at the relevant time. Said dying declaration is again consistent with the material particulars of Exhibit 21 and I do not find any infirmity in the said dying declaration. These two dying declarations are again consistent with the oral dying declaration initially made by Rajkanya to her father PW 4 Savant.

17. It is true that besides Exhibits 21 and 26, other dying declaration is brought on record by the defence at Exhibit 39 which is a statement recorded by the Investigating Officer during the course of investigation. There are some inconsistencies and improvements in the said dying declaration. However, only because there are some improvements as regards involvement of accused No.2 in the said crime, whole dying declaration cannot be discarded. Close scrutiny of the said dying declaration is necessary so as to consider the truthful part and falsity and the learned Additional Sessions Judge on close scrutiny, has rightly considered this particular aspect and rightly accepted the truthful part of the said dying declaration and further rightly discarded the falsity and improvement. I find that considering the ratio laid down in the above said authority, the factual aspects in the present case, the oral dying declaration, statement recorded by PW 1 Kazi (Exhibit 21), dying declaration recorded by the Special Judicial Magistrate (Exhibit 26). I find that the same is consistent. There is no scope of tutoring. The mental conditions of Rajkanya while making above dying declaration was also satisfactory, as this aspect is sufficiently clear from the evidence of PW 9 Dr. Munde and PW 10 Dr. Rajgure. I thus find that the learned Additional Sessions Judge is definitely justified in relying over the dying declarations.

18. The another aspect will be whether the learned Additional Sessions Judge is justified in convicting the appellant for the offence under Section 304-II of IPC. The learned Additional Sessions Judge has reached a conclusion that there was no intention on the part of appellant to set victim on fire so as to commit her murder. However, the court below has further concluded that the evidence on record, as regards knowledge on the part of the appellant can be gathered. Thus, the Court concluded that this is the offence under Section 299 of IPC - culpable homicide not amounting to murder and by applying clause (3) of Section 299, he convicted the appellant for the offence under Section 304-II of IPC.

On reassessment of evidence and considering the circumstances on record, to my mind, even the knowledge on the part of the appellant in committing the said offence can not be gathered. At the most, the alleged incident took place at the spur of moment when he talked Rajkanya to accompany him and on her refusal, the alleged incident took place. At the most it can be said that this is a voluntary act which will fall under Section 374 of IPC and I find that the accused committed offence under section 324 of IPC and not under Section 304-II of I.P.C. So as to spell out the offence under Section 304 II of IPC, the offence must be under Section 299 of IPC or either under any of the exceptions as given in Section 300 of IPC. On perusal of Section 299 and the exceptions given under Section 300 of IPC. I find that even the requisite knowledge on the part of the appellant cannot be gathered and thus the order of conviction and sentences for the offence under Section 304-II of IPC needs to be quashed and set aside. However, from the evidence on record, I find that the appellant needs to be convicted for the offence punishable under Section 324 of IPC.

19. The punishment provided for the offence under Section 324 of IPC is imprisonment for the term which may extend to three years or with fine or with both. Considering the factual aspects in the present case and the manner in which the incident took place. I find that the punishment for two years and fine of Rs.1000/- will meet the ends of justice. I further find that this is not a fit case where benefit of Probation of Offenders Act can be given. Therefore, request made in that behalf by Shri. Wagh, Advocate for the appellant, needs to be discarded.

20. In the result, the appeal is partly allowed. The order of conviction and sentence for the offence under Section 304-II of Indian Penal Code directing him to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/- is quashed and set aside. However, the appellant is convicted and sentenced for the offence under Section 324 of Indian Penal Code and he is directed to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for three months.

The appellant is entitled to set off under Section 428 of Code of Criminal Procedure.

Appeal partly allowed.