2003 ALL MR (Cri) 771
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. BATTA AND P.S. BRAHME, JJ.

Deorao S/O Keshaorao Chawre Vs. State Of Maharashtra

Criminal Appeal No.84 of 1998

30th September, 2002

Petitioner Counsel: Shir. N.P. DHOTE
Respondent Counsel: Shri. S.J. JICHKAR

Penal Code (1860), Ss.300, 302 - Bride burning - Murder of wife by accused after pouring kerosene oil and setting her on fire - Evidence and proof - Dying declarations recorded by Police Constables and Executive magistrate - No discrepancy between dying declaration - Plea of accused that he tried to extinguish fire was not acceptable - Accused not accompanying his victim wife to Hospital for treatment - Offence against accused was proved and his conviction under S.302 has to be sustained. (Paras 10,15,16)

JUDGMENT

R.K. BATTA, J. :- The appellant was tried for murder of his wife by pouring kerosene and setting her on fire under Section 302 of the Indian Penal Code. The appellant denied the charge and the prosecution examined in all 18 witnesses in support of the charge.

2. The prosecution case, in brief, is that the appellant was suspecting the character of his wife and used to beat her after taking alcohol. On 31-07-1996 between 8:00 and 9:00 p.m., the appellant under influence of liquor, assaulted the deceased, pouring kerosene on her and set her on fire. The appellant and the deceased were the only persons in the room in question where the incident is said to have taken place. Their children were sleeping outside in the verandah. After the deceased was set on fire, the deceased tried to go out of the house, but appellant prevented her and ultimately she forcibly came out of the house and jumped into the tank where there was water. The father-in-law of the deceased as also the children of the deceased met the deceased when she came out in burning condition. The deceased was taken to the hospital, but the appellant did not accompany them. In the hospital, her statement was first recorded by Head Constable and dying declaration was recorded by the Executive Magistrate. Subsequently also one more dying declaration was recorded by the Head Constable. The deceased died on 4th August 1996 in the hospital at Nagpur.

3. The case of the appellant that he is not at all involved in burning the deceased and his case is that while he was sleeping in the room, the deceased was sleeping in the kitchen. At about 11:00 p.m., the deceased shouted after which his son Hiraman jumped from the wall and came inside the room, after which both of them extinguished the fire and in the process, the appellant also suffered burn injuries on the leg. According to the appellant, the deceased was unconscious and did not talk with anyone. She was taken to the hospital, but he could not accompany her since by the time he came after changing his clothes, they left for hospital. On the next day morning, he came to the hospital. The deceased was throughout unconscious and doctor had taken her false statement and thumb impression.

4. The trial Court accepted the dying declarations and the statement of Durga (PW-5), daughter of the deceased and the accused, besides other evidence on record. After considering the entire evidence on record, the trial Court found the appellant guilty for murder of his wife under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and fine of Rs.1,000/-, in default, R.I. for six months. The appellant was in custody since 02.08.1996 and the benefit of set off under Section 428 of Cr.P.C. was given to the appellant.

5. Learned Advocate for the appellant urged before us that none of the dying declarations upon which reliance has been placed by the prosecution can be accepted since necessary endorsements in law have not been obtained from the doctor; that there is no material to show that the doctor made endorsements after examining the deceased; that there are inter se discrepancies between the three dying declarations and that the prosecution case is not supported by a number of prosecution witnesses including Hiraman (PW-1), step son of the deceased and her daughter Sharda (PW-3). It was also pointed out by learned Advocate for the appellant that according to the Panch (PW-12), both the thumbs of the deceased were burnt and as such the prosecution case that the thumb impressions of the deceased were taken on the dying declarations cannot be accepted. Learned Advocate for the appellant further urged that the appellant had in fact tried to extinguish fire and in the process had received injuries on his person and that it is a case of suicide/accidental burning and the prosecution has not been able to prove that the appellant had murdered the deceased.

6. Learned A.P.P., on the other hand, urged before us that the dying declarations upon which reliance has been placed by the prosecution intrinsically inspires confidence and the prosecution case is further supported by Durga (PW-5), Hemraj (PW-8) and other evidence on record including what was stated by the deceased immediately after the incident which is relevant under Section 6 of the Indian Evidence Act. According to him, the evidence on record has been appreciated by the trial Court in the correct perspective in the light of the principles of appreciation of evidence applicable in that behalf and that there is no case for interference.

7. The prosecution relies upon three dying declarations and we shall deal with them one by one. The dying declaration first in point of time is Exh.52, which is recorded by Police Constable Israil Khan (PW-15). He has stated that on 01.08.1996, while he was on patrolling, he received a message that one burnt lady was admitted in the hospital and he should go there and record her statement. Accordingly, he went to Cottage Hospital, Ramtek and met Dr. (Smt.) Badhe, who was examined as (PW-10) by the prosecution. He gave her requisition for recording the statement of the said lady and the said doctor gave in writing that the patient was fit to give the statement. He then recorded the statement of Leelabai, deceased and obtained her thumb impression. The signatures of the doctor were also taken on the statement. On the basis of the said statement, the offence against the appellant was registered. In this dying declaration (Exh.52), she has stated that after taking meal at about 8:00 to 9:00 p.m., her husband started giving filthy abuses saying that she had illicit relation with number of persons from the village including Satyabhan Chawre. She further stated that the appellant used to tell her that he would commit her murder, break into pieces by assaulting with an axe. On the date of the incident, the appellant closed both the doors of the house, poured kerosene on her from the kerosene lamp, drenched her saree with kerosene, lighted bidi with match stick and threw the said burning match stick on her person as a result of which the saree which was drenched with kerosene caught fire and she sustained burn injuries all over her body. Before recording the statement, PW-15 (Israil Khan) had made enquiries with doctor regarding fitness of the patient to give statement and Dr. Sunita Badhe (PW-10) made endorsement on Exh. 38 that the patient is fit to give the statement. This was at about 3:20 a.m. after which her statement was recorded by Israil Khan (PW-15). After recording the said statement, he obtained thumb impression of the deceased as also signatures of Dr. Sunita Badhe (PW-10) and doctor has mentioned the time as 3:50 a.m. After recording the statement, Israil Khan (PW-15) went to the Police Station for registering the crime.

8. After Head Constable Israil Khan (PW-15) left for Police Station, Executive Magistrate (PW-9) made enquiries with Dr. Sunita Badhe (PW-10) whether the patient was in a fit condition to give statement and the said doctor made endorsement that the patient was fit to give statement. According to the Executive Magistrate (PW-9), he was instructed by Tahsildar on phone to record the dying declaration. After obtaining the endorsement from the doctor, he recorded the dying declaration of the deceased and obtained her thumb impressions on it. He confirms that dying declaration (Exh.34) is the same which has been correctly recorded. The recording of the dying declaration was started by him at 3:50 a.m. and was completed at 4:30 a.m. on 01-08-1996. In this dying declaration, the deceased had in substance stated that after taking meals, she had gone to the bed in room in order to sleep; the appellant had first abused and then closed the door from inner side and after pouring kerosene on her person he set her on fire with match stick. She has further stated that when she shouted, he did not open the door nor allowed to open the inner door. In a burning condition, she opened the back side door of the house forcibly and came out through the back door. Even then her husband caught hold of her hand forcibly and did not allow her to come out of the house. However, she managed to come out of the house. Thereafter, immediately her son, daughters and father-in-law came running. She jumped into the water tank of her house and lateron she was taken to the hospital. After recording this statement, the Executive Magistrate had again obtained the certificate from the doctor that the patient was conscious and well oriented till the end of the statement.

9. The statements of Israil Khan (PW-15) and of Executive Magistrate (PW-9) get complete corroboration from the evidence of Dr. Sunita Badhe (PW-10) who has stated that she had received letter from the police as to whether the patient was fit to give the statement and she made endorsement that the patient was fit, after which the Head Constable recorded the statement of patient in her presence. She had identified the said statement as "Article-A". According to her, thereafter the Officer from Tahsil Office had enquired with her whether the patient was fit to give statement and she endorsed a certificate to that effect on the top of the paper on which the dying declaration was recorded by the Executive Magistrate. After recording the statement, she again examined the patient and found that the patient was conscious and was in a position to give statement. She denied the suggestion that the statement "Article-A" was not recorded in her presence. She also denied that she had not examined the patient and put endorsements/certificates at the instance of the police. She also denied the suggestion that she gave false endorsement as Naib Tahsildar is acquainted with her.

10. There is no reason whatsoever to disbelieve the statements of these three witnesses, Israil Khan (PW-15), Executive Magistrate (PW-9) and Dr. Sunita Badhe (PW-10). There is no inherent discrepancy in the two dying declarations recorded by the Head Constable (PW-15) and Executive Magistrate (PW-9) on material particulars. There is absolutely no discrepancy between the two dying declarations. Therefore, we are of the opinion that implicit reliance can be placed on the dying declarations of the deceased and since the dying declarations are found to be truthful, conviction can be recorded solely on the basis of dying declarations. There is in fact third declaration which was recorded on 01-08-1996 by Head Constable Mahadeo Sabale (PW-14). This dying declaration also substantially is in conformity with the earlier two dying declarations, but, learned Advocate for the appellant has urged before us that this dying declaration cannot be accepted since there is no certificate of the doctor after the recording of this statement. On requisition (Exh.49), the doctor has made endorsement that the patient was fit to give statement and the time mentioned therein as 7:15 p.m. According to Mahadeo Sabale (PW-14), the statement was recorded at about 8:00 to 9:00 a.m. However, as we have already pointed out, on the requisition for the purpose of recording dying declaration, the doctor has certified that the patient is fit to give statement, but the time put therein is 7:15 p.m. There is also no endorsement at the end of the dying declaration (Exh.50) recorded by the Head Constable Mahadeo Sabale (PW-14). In the light of the above, we find it difficult to rely upon this dying declaration though substantially on material particulars this dying declaration is also in conformity with earlier two dying declarations. There is, however, further evidence on record to support the prosecution case that it was the appellant who had burnt the deceased. The spot panchnama (Exh.28) also lends support to the prosecution case. The panchnama case was proved through Panch (PW-6). The incident took place in a room which is divided by a temporary partition into two. The temporary partition is of the height of about two feet. By this partition, one room has been divided into two portions and one portion is used as kitchen. Burnt pieces of clothes from the person of the deceased are seen near the western side wall and the burnt saree was found sticking to the quilt. The police found one match box, burnt bidi and used match stick lying on the floor, besides the kerosene which was lying between the partition and hearth in the kitchen. According to the prosecution case, the daughters of the deceased were sleeping outside in the verandah and the doors of this room, where the incident took place, were closed from inside. The appellant and deceased were the only persons inside the room where the incident took place. Immediately after the indecent, the deceased had forced her way outside the house and jumped into tank containing water when her children and father-in-law met her. The prosecution had examined a number of witnesses who had arrived at the scene of offence immediately after the incident and some of them have not supported the prosecution case. Hiraman (PW-1) is the step son of the deceased that is to say is the son of the first wife of the appellant. He has stated that he heard shouts, 'Mi Jalali'. He jumped from the wall inside the house because the outside door was closed from inside. His father was inside the house and the deceased was in Kitchen and he saw his father was extinguishing fire. He has admitted during the cross-examination that both the doors were closed from inside and according to him the deceased was unconscious. He has obviously not supported the prosecution case and has supported his father namely the appellant. However, one thing is established from his testimony also that both the doors of the room where the incident took place were closed. His deposition that the deceased was unconscious and was not able to talk is falsified by other evidence on record.

11. PW-2 (Keshaorao) is the father-in-law of the deceased and father of the appellant, who has stated that he, along with his wife and Hiraman, residing separately. The appellant was residing with the deceased and three daughters in a separate house. In his examination in chief, he did not support the prosecution case as a result of which learned A.P.P. granted permission to put the questions in nature of cross-examination. During these questioning by learned A.P.P., he admitted that both the doors of the house of the accused were closed as a result of which Hiraman (PW-1) had to jump from the half wall of the house; that Hiraman (PW-1) extinguished fire and opened both the doors. Thus from the evidence of this witness also it stands proved that both the doors of the room in question were closed. He admitted that while sitting in the auto, his daughter-in-law was saying that, 'Mamaji Tumchya Porane Mala Jalale. Maze Kam Zale. Mamaji Tum chya Paya Lagu Dya. Mazya Poribalina Sambhala.' He has further stated that people were asking the accused to go along with his wife, but the accused went inside for wearing the clothes and he did not return for a long period and when people went to see him, the appellant had gone elsewhere. This conduct of the appellant is extremely relevant since it would be the natural reaction that in case his wife had received accidental burn he should accompany her to the hospital, but the appellant instead of going to the hospital, went somewhere else. As per deposition of his father (Keshorao PW-2), in cross-examination, he has stated that because of burns his daughter-in-law was unable to talk property. He forgot that in examination in chief, he has given the details of the talk which the deceased had with him prior to sitting in the auto for the purpose of going to the hospital. Thus, the evidence of Keshorao (PW-2) lends support to the prosecution case.

12. The prosecution had examined Sharda (PW-3), daughter of the deceased, who was 12 years old at the time of her examination, who also did not support the prosecution case and learned A.P.P. was permitted to put the questions in nature of cross-examination. During this, she admitted that her mother (deceased) told her grand father (Keshaorao PW-2) that her father (appellant) poured the kerosene on her (deceased) person and set her on fire by burning match stick. There was no challenge to this statement during cross-examination and in fact the statement of Sharda (PW-3) supports the version of the prosecution that the deceased had told Keshaorao (PW-2) that the appellant had poured kerosene on her person and set her on fire by burning match stick.

13. Durga (PW-5), daughter of the deceased has stated that on the night of the incident, she along with her sisters were sleeping in verandah; her father and mother mere sleeping in the house and heard shouts of her mother, 'Dhawa Dhawa', Hiraman (PW-1) jumped inside the room of her mother from the wall as both the doors were closed from inside. The back door was opened and her mother jumped into water tank. She categorically stated that her mother told that her father set her on fire. She also stated that her father was saying that he would kill her by setting her on fire. She also told that kerosene was poured on her person and she was set on fire. She also stated that her father always used to beat her mother and was making allegations about illicit relations with Satyabhan. It is no doubt true that the portion of her statement relating to illicit relations with Satyabhan does not figure in her statement recorded by the police. She reiterated during cross-examination that both the doors were closed from inside. Her brother had jumped from the wall and entered inside the kitchen. There is no reason whatsoever to disbelieve the testimony of this witness which lends support to the prosecution case.

14. Deepkiran (PW-4), Chandan(PW-6) and Mahesh (PW-7) did not support the prosecution case. However, Hemraj (PW-8) has stated that he along with his wife had gone to the Mayo Hospital, Nagpur for making enquiry regarding the deceased. When they made enquiries with her, she told that her husband had drunk liquor. He quarrelled with her. He poured the kerosene from the lamp by holding her and set her on fire with a burning stick. She was confronted with her police statement wherein she had not stated as to whether her husband had consumed liquor. She was also confronted in respect of her statement at the time of incident that the accused caught hold of her, but for these confrontations, the evidence of this witness that the deceased told him that the appellant had quarrelled with her, poured kerosene from a lamp and set her on fire by burning stick stands proved.

15. The above evidence lends support to the prosecution case that the appellant had poured kerosene on the deceased and set her on fire. The case of the appellant is that he tried to extinguish fire and received burn injury on right leg. The question is whether he was extinguishing fire with the help of right leg. Normally, the extinction of fire is done either with the help of hands or by holding something in the hands. The deceased in her dying declaration had stated that while she was burning and she wanted to come out of the room the appellant had caught her and it is probably in this process that the appellant had received injuries on the right leg. The theory that the appellant tried to extinguish fire cannot be accepted. We have already referred to the conduct of the appellant in not even accompanying his wife to the hospital, but on the pretext he was going to change the clothes, he went out of the house elsewhere, as deposed by his own father Keshaorao (PW-2). Learned Advocate for the appellant has urged before us that according to the Panch (PW-12) both the thumbs of the deceased were burnt. On all the three dying declarations, thumb impressions were taken. No suggestion was given by any of the witnesses that the thumbs of the deceased were burnt, as a result of which her thumb impressions could not have been taken on the dying declarations. Besides this, if we go through the evidence of the Doctor (PW-18) who conducted the postmortem, we find that there are no burn injuries on the thumbs or the hands of the deceased. He found burn injuries to the extent of 62 per cent and according to him the said injuries are collectively sufficient to cause death in ordinary course. Dr. Sunita Badhe (PW-10) has stated that the deceased was burnt to the extent of 75 per cent.

16. In view of the above, we find that the prosecution has established the charges against the appellant and the trial Court has very rightly held the appellant guilty under Section 302 of the Indian Penal Code. Accordingly, we do not find any merit in this appeal and the appeal is hereby dismissed.

Appeal dismissed.