2007 ALL MR (Cri) 119
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

K.J. ROHEE AND C.L. PANGARKAR, JJ.

Ramesh S/O. Janardhan Domble Vs. State Of Maharashtra

Criminal Appeal No.514 of 2002

20th October, 2006

Petitioner Counsel: Mr. R. M. DAGA
Respondent Counsel: Mr. A. D. SONAK

(A) Penal Code (1860), Ss.300, 302 - Bride burning - Evidence and proof - Accused alleged to have poured kerosene oil on victim wife and set her on fire - Victim suffering burn injuries to extent of 92% - Offence proved by valid dying declaration of victim - Drops of kerosene oil also found on accused's pant - Conviction and sentence of accused for murder upheld.

When a person suffers 92 per cent burns, it has to be said that in ordinary course of nature it must cause death. Merely because the accused had extinguished the fire, that does not mean that he had no intention to kill the deceased. In the instant case, appellant/accused, after pouring the kerosene and setting the deceased on fire, went away from the place of incident and when he saw the deceased in flames and when she shouted, he again came back and then poured water on her person. The act of appellant/accused in pouring kerosene on the person of deceased and setting her on fire with burning stick in the chula shows that the accused had knowledge that his act was so imminently dangerous that in all probabilities it must cause death. If he had no intention to kill the deceased, he would not have left the spot. There was no sudden quarrel in this case since eight days prior to the incident quarrel was going on between the appellant/accused and the deceased and also a day prior to the incident he quarrelled with her for not cooking the vegetable for him. He had beaten her with chappal. There is nothing to suggest on record that there was any sudden quarrel between the appellant/accused and the deceased immediately before the incident. On the other hand, what has been stated is that while she was doing the work near the Chula, the appellant/accused poured kerosene on her person and set her on fire. There is nothing in the evidence to suggest that immediately before or at the time of the incident there was any quarrel between the appellant/accused and the deceased. So it is not that appellant/accused committed this act in the heat of passion. The fact that residue of kerosene was found on the clothes of appellant/accused, particularly on pant and shirt, shows that while pouring the kerosene on the person of the deceased, some drops fell on his clothes. This circumstance lends support to the dying declarations made by the deceased that it was the appellant/accused, who set her on fire. None of the dying declarations suffers from any infirmity. It was the appellant/accused who set the deceased on fire. It is, therefore, very clear that the death of the deceased is homicidal. [Para 16,17]

Whenever the court has to consider the question as to whether the act of the accused falls within definition of murder or culpable homicide not amounting to murder the court has to consider the act, action and conduct of the accused before and at the time of the act in question. Any conduct, action or act subsequent to taking place of such event becomes irrelevant to determine the question of murder or culpable homicide not amounting to murder. The intention of the person committing the act could be determined only on the basis of any thing happening prior or at the time of commission of offence and not subsequent thereto. The accused may extinguish the fire out of repentance. Repentance, however, strong cannot go to show that there was no intention. The case in question squarely falls in the category of murder and the trial court has rightly held the accused to be guilty of offence under S.302, Penal Code. [Para 17]

(B) Evidence Act (1872), S.32 - Dying declaration - Dying declaration recorded by Executive Magistrate - Medical Officer after examining victim stating that victim was in medically fit condition to give statement - Doctor signing at commencement of dying declaration and also at end of the declaration - Doctor also stating that Executive Magistrate recorded statement in his presence - Fact that Medical Officer was not examined does not go to show that deceased was not in a fit condition to give the statement. (Paras 12, 14)

(C) Criminal P.C. (1973), S.234 - Evidence Act (1872) S.45 - Examination of medical witness - He has to be examined as expert and not as ordinary witness - Prosecution has to prove that such witness is really expert in his field - Relevant questions have to be put to him.

Whenever any Medical Officer is examined in any criminal trial, he is examined as an expert and not as an ordinary witness. In order, therefore, to show that the witness is an expert, it is always necessary for the prosecution to show that the witness is really an expert in his field. It is, therefore, necessary to ask the witness who is examined as expert, as regards his educational qualifications and experience in the field. In order to show that witness has experience in the field, the prosecution may elicit from the witness as to how many patients with injuries he has examined and how many post mortem examinations he has performed. It is only on the basis of these two things it could be determined if the witness is an expert and what weight his evidence needs to be attached. [Para 20]

Cases Cited:
Suresh Vs. State of Maharashtra, 2004 ALL MR (Cri) 664 [Para 17]
Bhimrao Vs. State of Maharashtra, 2001(1) Mh.L.J. 550 [Para 17]
Meena Anil Choudhary Vs. State of Maharashtra, 2006 ALL MR (Cri) 2421 [Para 17]


JUDGMENT

C. L. PANGARKAR, J.:- The appellant is the accused No.1. He was convicted by Additional Sessions Judge, Chandrapur for offences punishable under Sections 302 and 498-A of I.P.Code and was sentenced to imprisonment for life. The accused Nos.2 and 3 were acquitted by the learned Sessions Judge. Appellant shall hereinafter be referred to as accused.

2. The facts giving rise to this appeal are as under -

The incident in question took place on 23-12-2001. Kunda, the deceased, was married to appellant/accused No.1 on 28-4-2001. She was studied up to matric while her husband is a non-matric. The father of deceased had paid Rs.6,000/- as a dowry and a gold ring and a wrist watch. After the marriage the deceased went to reside with the accused persons. Accused was living in a joint family, which consisted of his parents, elder brother and his wife. While they were living together, the deceased also used to go to the field. At the time of Pola festival the deceased and the accused were directed to live separately in the same house. They were living in a separate room in the same house. Appellant/accused was running a pan shop. He had, however, closed his pan shop since eight days prior to the incident and was going to the field. It is alleged that appellant/accused used to frequently quarrel with the deceased and the accused Nos.2 and 3 (acquitted) used to instigate him. It is further alleged that since eight days prior to the incident appellant/accused was beating the deceased. A day prior to the incident, the deceased had prepared vegetable in the night and, therefore, she did not prepare fresh vegetable. Next day morning she only cooked rice. She found that the vegetable, that was available, was enough for both and, therefore, she did not cook vegetable once again in the morning. For this reason appellant/accused beat her with chappal. When some people came to her rescue, the appellant/accused gave threats to them. However, her parents-in-law did not come to her rescue. Since the deceased had not cooked fresh vegetable, the appellant/accused went to his mother's house and brought the available vegetable. The deceased, however, did not take the dinner and went to bed. Deceased woke-up early in the morning at 6 O'clock. Accused woke-up after 5 to 10 minutes. After she woke-up, she burnt the chula in order to heat the water. In fact, every day it was accused No.1, who used to do this ritual but on that day instead of doing this accused went out of the house. While going, the appellant/accused picked up the kerosene lamp hanging on the wall, poured the kerosene out of it on the person of deceased and set her on fire. She caught fire and when she came out she shouted. The accused came there. He poured water on her person and extinguished the fire. The neighbours also came there. All of them brought the deceased to the hospital.

3. The parents of the deceased came to meet her. She told them that the appellant/accused Ramesh had poured kerosene on her person and set her on fire. Similarly, the Executive Magistrate also recorded the dying declaration of the deceased. Dying declaration was also recorded by Head constable Mr. Bhaisare and A.P.I. Mr. Maske. Offence was registered under Section 307 of I.P.Code. Due to the death of the deceased later it was converted to one under Sections 302, 498-A read with Section 34 of I.P.Code.

4. The learned Sessions Judge, after recording the evidence, found the appellant/accused Ramesh to be guilty, while acquitted accused Nos.2 and 3. It is against this conviction of accused No.1 that this appeal has been preferred.

5. We have heard the learned counsel for the appellant/accused and the State. We have also perused the record.

6. It is not disputed that the deceased died of the burn injuries. Exh.44 is the post mortem note, which shows that the deceased had sustained 92 per cent burns and she died of shock due to 92 per cent burns. The question as to whether the death is suicidal or accidental has to be determined only upon the appreciation of the dying declarations and other evidence on record.

7. There are three oral dying declarations made to the father, mother and brother. The other three are recorded by the Executive Magistrate and Police Officers. We propose to deal with them independently.

8. Before we proceed to discuss the evidence about the dying declarations, it would be worthwhile to look into the background. The marriage between the deceased and appellant/accused had taken place less than a year prior to the incident. The evidence of P.W.1 Madhukar, P.W.2- Pushpalata - the mother, P.W.4 - Shrikrishna - the brother, P.W.6 Lalaji - the neighbour, and P.W.11 Lalita - the landlady certainly goes to show that the relations between the husband and the wife were not good and there used to be frequent quarrels amongst them. It appears that they were incompatible. Even the letters Exhs.52 and 53 corroborate the version of witnesses that there used to be frequent quarrels. It is in the evidence of P.W.11 - Lalita that she had to ask the accused and the deceased to leave the house and go back to their village due to the frequent quarrels. It is in the background of such strained relations between the husband and the wife that the dying declarations have to be read and appreciated.

9. The undisputed fact is that the incident took place soon after the husband and the wife woke up in the morning on 23-12-2001. P.W.1 - Madhukar, the father, says that he along with his wife and other children went to Gadchiroli to see the deceased in the hospital. He states that he met Kunda, the deceased, in the hospital and Kunda told them that when she was plastering the floor, the appellant/accused Ramesh poured kerosene on her person and set her on fire. She also told him that nobody extinguished the fire. P.W.2 Pushpalata, the mother, also states that Kunda told her that when she was plastering the floor accused Ramesh came from behind and poured kerosene and set her on fire. She also deposed that Kunda told her that prior to that she had burnt the chula. Now evidence of both these witnesses, who are parents of the deceased, is consistent on the point that appellant/accused had poured kerosene and set her on fire. The only omission which amounts to contradiction in respect of these two witnesses is that they had failed to tell about the deceased having told about the plastering of the floor. This is not a material contradiction at all. Therefore, even if Madhukar (P.W.1) and Pushpalata (P.W.2) had failed to tell the police about the deceased having told them that she was plastering the floor, that does not affect their testimony and credit-worthiness.

10. It is suggested to P.W.1 Madhukar that a day prior the appellant/accused had gone to the field to cut the paddy. That has been denied by the witness. By this suggestion, perhaps, the appellant wants to suggest alibi, but the presence of appellant/accused on the spot cannot at all be doubted or disputed, since he had suffered burn injuries as is suggested to witnesses. There is also certificate of his injury at Exh.61. Therefore, there is no substance in the defence of the appellant/accused that he had gone out in the field and was not present on the spot. It was contended that both P.Ws.1 and 2 have said that deceased Kunda was shouting due to pains and this shows that she was not in a position to speak at all. This submission has no force. The fact that she was shouting suggests that she was neither in shock nor in Coma or under influence of any drug. Had she been in Coma or under influence of drug, she would have been quiet.

11. P.W.3 Shrikrushna, the brother of deceased, also deposed of Kunda having told him that there was a quarrel and then the appellant/accused poured kerosene on her person and set her on fire. What has been suggested to the witness is that Kunda did not tell him anything. No other question is put to the witness as to the condition of the deceased. Hence, in fact, on this aspect his testimony goes unchallenged.

12. We now turn to the written dying declarations. P.W.9 Mahadeo is the Executive Magistrate, who recorded the statement of deceased Kunda. He states that upon request of P.S.O., he went to the Civil hospital to record the statement of Kunda. He further states that he asked Medical Officer on duty if Kunda was in a fit condition to give the statement. He also states that Medical Officer came to the ward, examined Kunda and told that she was in fit condition and he made an endorsement on the form of the dying declaration to that effect. He also states that he also asked Kunda her name and address and she gave the answers. Further, he goes on to depose that Kunda told him that appellant/accused used to question her fidelity. He also deposes that Kunda also told him that in the morning she had plastered the floor, burnt the chula when Ramesh, appellant/accused No.1, came there and poured kerosene and set her on fire with a fire stick in the Chula. She told that appellant/accused then went and the neighbour extinguished the fire. Exh.46 is the dying declaration. P.W.9 Mahadeo has positively stated that the statement was readover to the deceased and she admitted it to be correct. It was contended that the witness admits in cross-examination that he did not ask the Medical Officer to make endorsement about fitness of Kunda on the dying declaration and Medical Officer voluntarily did not make such an endorsement. It was submitted that this evidence suggests that there is no proof offered by prosecution to hold that deceased Kunda was in a fit condition to give the statement. This submission has no force. It is a fact that the Medical Officer did not make any endorsement in so many words that he examined the patient and she was in a fit condition, in his own hand. But the fact is that Dr. Kanire (P.W.7) has put his signature on the written request made by the Executive Magistrate when the Executive Magistrate had addressed the memo to the Medical Officer on the same paper on which he recorded the dying declaration. By this memo he had asked the Medical Officer to certify if the patient was in a fit condition. It is below this that the Medical Officer has put his signature. Dr. Kanire (P.W.7) has stated positively that Executive Magistrate had come at 11 a.m. and he asked him if the deceased was in a fit condition and he examined the deceased and found her to be in a fit condition to give the statement. He states that the Executive Magistrate recorded the statement in his presence and after completion of the recording, he certified that it was made in his presence. It bears the signature of Dr. Kanire not only at the commencement of the dying declaration but even at the end also. When Dr. Kanire (P.W.7) positively states that he did examine the patient before and after recording of the dying declaration, there is no reason to doubt the veracity of this statement of a responsible Medical Officer.

13. P.W.10 is Head Constable Mr. Sukhadeo Bhaisare. He states that he recorded dying declaration of Kunda in the civil hospital and before recording he met the Medical Officer on duty and told him to certify whether the patient was in a fit condition or not. He states that the Medical Officer had examined the patient and had certified that Kunda was in a fit condition. He states that he recorded the dying declaration in presence of Dr. Kanire and after recording the dying declaration he also obtained thumb impression of Kunda on the said dying declaration (Exh.49). The learned counsel for the appellant/accused No.1 once again invited our attention to certain admission given by this witness. He admits that he had not given any letter of request to the Medical Officer about recording of dying declaration and Medical Officer had not given any endorsement on the dying declaration that the patient was in a fit condition. It is a fact that the witness did not give any letter to the Medical Officer but it is also a fact that Exh.49 does bear endorsement of Dr. Kanire (P.W.7). He had made endorsement that dying declaration is recorded in his presence. This shows the presence of Dr. Kanire while this statement was recorded. P.W.7 Dr. Kanire in his evidence has positively stated that he had examined the patient before the dying declaration was recorded and found her to be in a fit condition. In view of the fact that Dr. Kanire has made endorsement, there is no reason to doubt that he did examine the patient and found her to be fit. There is, therefore, no manner of doubt that when two dying declarations were recorded the, patient was in a fit condition to give the statement. There is no suspicious circumstance surrounding any of these dying declarations. It is not even suggested to any witness that the deceased was tutored by any of her relatives. On the other hand, we have seen that the relations between the husband and wife were very strained and, therefore, there is every possibility of such incident having happened.

14. The next dying declaration is recorded by A.P.I. Mr. Vithoba Mhaske (P.W.12). P.W.12 states that he went to Civil Hospital at 2 p.m. on 23-12-2001 and he recorded the dying declaration of Kunda. He states that before that he had asked the Medical Officer Dr. Indurkar to examine Kunda and Medical Officer examined and certified that she was in a fit condition to give a statement. He states that she told him that in the morning she had burnt the chula and her husband came there and poured kerosene and set her on fire with a burning stick in the chula. She also told that appellant/accused left and came after she shouted. This dying declaration is at Exh.55. There is an endorsement of Dr.Indurkar on this dying declaration but she has not been examined. Simply because the Medical Officer in respect of this dying declaration was not examined, does not go to show that deceased was not in a fit condition to give the statement. The fact remains that there is an endorsement on the dying declaration by Dr. Indurkar that patient was examined by her. We find that the patient at this time also was in a fit condition to give her statement.

15. Shri. R. M. Daga, the learned counsel for the appellant/accused contended that dying declarations are not consistent and, therefore, it must be said that they suffer from infirmity. Particularly, he had drawn our attention to the contents of three dying declarations (Exh.46, Exh.49 and Exh.55). In Exh.46 it is stated by deceased that she was set on fire with the help of burning stick in the chula. In Exh.49 it is stated that she was set on fire with match stick while again in Exh.55 she stated that she was set on fire with the burning stick in the Chula. There is no doubt that in Exh.49 she speaks of use of match stick instead of burning stick in the Chula. The discrepancy is very minor. In both other statements she is positive of use of burning stick in the Chula. The inconsistency to our mind is not so material as to discard all the dying declarations. It must be noted that in all dying declarations she is very positive of appellant/accused having poured kerosene on her person and having set her on fire. On that aspect her statement is very positive and consistent.

16. We may point out very important and significant circumstance to attribute the act to the appellant/accused which will also negative the story of suicidal or accidental death. The clothes of appellant/accused were seized by the police vide Exh.22. Article Nos.2 and 4 in Exh.22 are one black pant and a shirt belonging to appellant/accused No.1. They were sent under the requisition (Exh.32) to Chemical Analyser. They were examined by the Chemical Analyser and the report of the Chemical Analyser is at Exh.58. It shows that residues of kerosene were found both on pant and shirt seized from the appellant/accused. Had deceased set fire to herself by pouring kerosene on her person or had she caught fire accidentally, there ought not to be residue of kerosene on the clothes of the appellant/accused No.1, as he could not be near the deceased. The fact that residue of kerosene was found on the clothes of appellant/accused No.1, particularly on pant and shirt, shows that while pouring the kerosene on the person of the deceased, some drops fell on his clothes. This circumstance lends support to the dying declarations made by the deceased that it was the appellant/accused, who set her on fire. We find that none of the dying declarations suffers from any infirmity. It was the appellant/accused who set the deceased on fire. It is, therefore, very clear that the death of the deceased is homicidal.

17. It was contended that the present case does not fall in the category of murder and the appellant/accused should have been held guilty under an exception and should have been convicted under Section 304-II of the Indian Penal Code. Shri. Daga, the learned counsel for the appellant/accused, submitted that there is no evidence on record that the injuries were sufficient in the ordinary course of nature to cause the death and the accused/appellant had tried to extinguish the fire by pouring water on the person of deceased. He has placed reliance on the case reported in 2004 ALL MR (Cri) 664 (Suresh Vs. State of Maharashtra). In the reported case it was found that deceased had suffered only 48 per cent burns and there was no evidence that the said burns were sufficient in the ordinary course of nature to cause death. In our case, the percentage of burns was 92. When a person suffers 92 per cent burns, it has to be said that in ordinary course of nature it must cause death. Merely because the accused had extinguished the fire, that does not mean that he had no intention to kill the deceased. Here, in our case, what had happened is that the appellant/accused, after pouring the kerosene and setting the deceased on fire, went away from the place of incident and when he saw the deceased in flames and when she shouted, he again came back and then poured water on her person. We find that the act of appellant/accused in pouring kerosene on the person of deceased and setting her on fire with burning stick in the chula shows that the accused had knowledge that his act was so imminently dangerous that in all probabilities it must cause death. If he had no intention to kill the deceased, he would not have left the spot. The ruling therefore, has no bearing on the case in hand. Yet another ruling reported in 2001(1) Mh.L.J. 550 (Bhimrao Vs. State of Maharashtra) was placed before us. It has been held by the court that the deceased had poured kerosene on the person of his wife in a heat of passion after a sudden quarrel and had subsequently extinguished the fire, the case would fall in the category of culpable homicide not amounting to murder. It may be mentioned that in our case there was no such sudden quarrel. In this case in hand since eight days prior to the incident quarrel was going on between the appellant/accused and the deceased and also a day prior to the incident he quarrelled with her for not cooking the vegetable for him. He had beaten her with chappal. There is nothing to suggest on record that there was any sudden quarrel between the appellant/accused and the deceased immediately before the incident. On the other hand, what has been stated is that while she was doing the work near the Chula, the appellant/accused poured kerosene on her person and set her on fire. There is nothing in the evidence to suggest that immediately before or at the time of the incident there was any quarrel between the appellant/accused and the deceased. So it is not that appellant/accused committed this act in the heat of passion. In fact, the quarrels were going on between them from last eight days. Had a sudden quarrel taken place between the appellant/accused and the deceased, perhaps the ratio as laid down in Bhimrao's case could have been applied. Another case reported in 2006 ALL MR (Cri) 2421, (Meena Anil Choudhary Vs. State of Maharashtra) was placed before us. The ratio in both these cases cannot be applied to case in hand. The court in both the rulings did not consider the following reasons. The learned counsel wanted us to hold that the case falls in second part of Section 304 of I.P.Code on the basis of these rulings. We find that the benches dealing with those appeals did not consider a very important aspect. It is observed that as the accused had tried to extinguish fire he had no intention to kill and therefore case did not fall in category of murder. Whenever the court has to consider the question as to whether the act of the accused falls within definition of murder or culpable homicide not amounting to murder the court has to consider the act, action and conduct of the accused before and at the time of the act in question. Any conduct, action or act subsequent to taking place of such event becomes irrelevant to determine the question of murder or culpable homicide not amounting to murder. The intention of the person committing the act could be determined only on the basis of any thing happening prior or at the time of commission of offence and not subsequent thereto. The accused may extinguish the fire out of repentance. Repentance, however, strong cannot go to show that there was no intention. This aspect having not been considered by the court in those cases, we find that the ratio cannot be applied to case in hand. We find that this case squarely falls in the category of murder and we also find that the learned Sessions Judge has rightly held the appellant/accused to be guilty of the offence under Section 302 of the Indian Penal Code.

18. It is in the evidence of P.Ws.1, 2 and 4 that there used to be frequent quarrels between the appellant/accused and the deceased. Even P.W.11 Lalita also has stated that appellant/accused No.1 used to abuse deceased Kunda for not cooking food. In letter (Exh.53) it is mentioned that appellant/accused used to doubt the chastity of the deceased. In Exh.55 it is stated by deceased that she was beaten with Chappal by appellant/accused and was beaten for the past eight days. In Exh.52 also there is reference to her being beaten by the appellant/accused. In dying declaration (Exh.46) also there is a reference of the accused doubting the chastity of the deceased. If the appellant/accused was really questioning the chastity of deceased, it was really very unreasonable on his part and in certainly amounts to cruelty. Similarly, the deceased was beaten with chappal. That act on the part of appellant/accused No.1 amounts to cruelty within the meaning of Section 498-A of I.P.Code. The learned Sessions Judge, therefore, has rightly held the appellant/accused to be guilty of offence punishable under Section 498-A of I.P.Code.

19. Before parting with the judgment, we wish to bring to the notice of the prosecuting agency that while hearing the criminal appeal it is found that the prosecutors do not put question to the Medical Officer, who carry out the post mortem examination or examine the injuries on the person of the victim; as to whether the injury/injuries sustained by the victim were sufficient in the ordinary course of nature to cause the death. Section 300 of the I.P.Code envisages that the prosecution must prove that the injuries to victim were sufficient in the ordinary course of nature to cause the death. Even in case of attempt to murder it is necessary so to prove.

20. We further wish to bring to the notice of the prosecuting agency that whenever any Medical Officer is examined in any criminal trial, he is examined as an expert and not as an ordinary witness. In order, therefore, to show that the witness is an expert, it is always necessary for the prosecution to show that the witness is really an expert in his field. It is, therefore, necessary to ask the witness who is examined as expert, as regards his educational qualifications and experience in the field. In order to show that witness has experience in the field, the prosecution may elicit from the witness as to how many patients with injuries he has examined and how many post mortem examinations he has performed. It is only on the basis of these two things it could be determined if the witness is an expert and what weight his evidence needs to be attached. A copy of this judgment may be sent to the Director of Public Prosecution for being circulated to all prosecutors including the District Government Pleaders.

We see no merit in the appeal. It is accordingly dismissed.

Appeal dismissed.