Criminal Appeal No. 883 of 2005

29th February, 2012

Petitioner Counsel: Mr. SHREEKANT GAVAND
Respondent Counsel: Mrs. A. S. PAI

JUDGMENT

SHRIHARI P. DAVARE, J. :- Heard learned respective counsel for the parties.

2. Present appeal is directed against the conviction and sentence imposed upon the Appellant (Original Accused), (hereinafter referred to as the Accused for the sake of brevity). By judgment and order dated 30th December, 2004 rendered by Learned III Adhoc Additional Session Judge, Thane in Sessions Case No.268 of 2004 thereby convicting him for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 500/- in default to suffer further S.I. for one month. However, the Accused was acquitted for the offence punishable under Section 498-A of Indian Penal Code by the said judgment.

3. Briefly stated the facts of the prosecution case are as follows:

The Accused viz. Kailas Ambaji Mhaske faced the trial for the offence punishable under Section 498-A and 302 of I.P.C. on the accusation that he subjected his wife Sou Changuna (deceased victim) cruelty with a view to coerce her to meet his demand for money and on 21st January, 2004 at about 8.00 p.m. set her on fire by pouring kerosene on her person, due to which she was succumbed to burn injuries of 46% on 20th February, 2004.

4. It is alleged that the deceased Changuna married with the Accused about 4 years prior to the occurrence of incident and she was treated well but since August 2003 the Accused started abusing and assaulting her by consuming liquor and used to demand money from her and he used to assault her due to non-fulfillment thereof. On 21st January, 2004 at about 8.00 p.m. PW-1 Jyoti Mhatre visited the house of victim Changuna and they were chit-chatting with each other. The Accused was in the house and he had consumed liquor, thereafter, he started abusing Changuna when she was chit-chatting with PW-1 Jyoti Mhatre. Hence Jyoti Mhatre went away. Thereafter Accused picked up kerosene can and poured it on the person of Changuna and set her ablazed due to which Changuna was burnt. It is also alleged that, the Accused was watching victim Changuna while she was burning by sitting on the bed i.e. Palang but he did not attempt to extinguished the fire. The victim Changuna raised the shouts and thereby neighbours rushed there and extinguished the fire. PW-2 - Pandharinath Patil who is the brother of Changuna and other relative came there and shifted her to Civil Hospital, Thane for medical treatment.

5. It is also the case of the prosecution that, PW-9 Police Constable Bachharam Chavan who was attached to Shanti Nagar Police Station at the relevant time i.e. in January 2004, on instructions, went to Civil Hospital, Thane to record the statement of victim Changuna. Accordingly he gave written requisition to Medical Officer i.e. PW-7 Tejaswini Bhagat who examined the victim Changuna and opined that she was conscious and was in a position to give the statement and gave endorsement to that effect. Accordingly, PW-9 P.C. Chavan put the questions to victim Changuna and recorded her replies in the form of statement and the contents thereof were read over to her which she confirmed to be correct and obtained her thumb impression thereon and also put his signature on the said statement (Exh.19) and submitted it to P.S.O. Shanti Nagar Police Station, and offence was registered on the basis of said statement under Section 498-A and 302 of I.P.C. Under CR. I-16/ 2004.

6. It is also the case of the prosecution that, on the request of the police personnel Shri Baburao Kambli PW-5 Special Executive Magistrate went to the Civil Hospital, Thane for recording statement of victim Changuna and he also met the Medical Officer PW-7 Tejaswini Bhagat who examined the patient and confirmed that she was in a position to give the statement, and accordingly, she made endorsement to that effect and thereafter PW-5 Baburao Kambli recorded the dying declaration of victim Changuna (Exh.16). PW-10 P.S.I. Laxman Yadav was also attached to Shanti Nagar Police Station in January 2004 and he took over the investigation of aforesaid CR on 22nd January, 2004 and received aforesaid both the statements of victim Changuna. Thereafter, he visited the spot of the incident which was situated in the house of Accused and deceased Changuna at Village Pimplas, Tal-Bhiwandi, Dist-4 Thane and prepared the spot panchnama and seized the burnt piece of saree, half burnt peticoat, half burnt blause, one plastic can containing 4 liters of kerosene and one match box in presence of panchas therein (Exh.18). He also recorded the statements of neighbours of the Accused and deceased and their relatives. However, ultimately, victim Changuna succumbed to the burn injuries in Civil Hospital, Thane on 20th February, 2004. The inquest panchnama of dead body of deceased Changuna was drawn (Exh.9) and thereafter PW-8 Dr. Shripad Pathak, who has attached the Civil Hospital , Thane performed postmortem on the said dead body and he found that victim Changuna sustained 46% burns superficial to deep injuries and according to him, Changuna died due to 46% deep burns and he produced the postmortem report at Exh.25 which were collected by PW-10 P.S.I Yadav.

7. Accordingly after completion of investigation, chargesheet was filed against the Accused before Learned J.M.F.C. Bhiwandi for the offence punishable under Section 498-A and 302 of I.P.C. However, since the case was exclusively triable by the Court of Sessions, learned J.M.F.C., Bhiwandi committed the case to the Sessions Court, Thane. Accordingly, Learned III Ad-hoc Additional Session Judge, Thane framed the charge against the Accused under Exh.4 on 1st November, 2004 for the offence punishable under Section 498-A and 302 of I.P.C. However, the Accused pleaded not guilty to the said charges and claimed to be tried. Accordingly to substantiate the charges leveled against the Accused, the prosecution examined as many as ten witnesses as mentioned below:

1. PW-1 Jyoti @ Shakuntala Mhatre - friend of victim Changuna who visited her house on 21st January, 2004 and was chit-chatting with her.

2. PW-2 Pandharinath Kadu Patil - brother of victim Changuna.

3. PW-3 Pralhad Kadu Patil - brother of victim Changuna.

4. PW-4 Eknath Kadu Patil - brother of deceased Changuna.

5. PW-5 Baburao Mukund Kambli-Special Executive Magistrate who recorded second dying declaration of the victim on 22nd January, 2004.

6. PW-6 Mukesh Suresh Patil-panch to the spot panchnama - turned hostile and did not support the case of prosecution.

7. PW-7 Dr. Tejaswini Bhagat who examined the patient and gave endorsement on both the dying declarations.

8. PW-8 Dr. Shripad Pathak attached to Civil Hospital, Thane who performed the postmortem on dead body of Changuna on 21st February, 2004.

9. PW-9 Bachharam Chavan P.H.C. who recorded first dying declaration of victim on 22nd January, 2004.

10. PW-10 P.S.I. Laxman Yadav - Investigating Officer.

8. The defence of the Accused is of total denial and according to him he had lost his job and he was unemployed and his wife Changuna was serving with factory but her salary was not sufficient to maintain the family and therefore, she was fed up and ultimately committed suicide. However, the Accused neither examined himself on oath nor examined any defence witness to substantiate the said defence. After assessing and analyzing the evidence on record, and also after considering the rival submissions advanced by Learned Counsel for the parties, the learned trial Court convicted the Accused for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life and also fine as mentioned herein above. Being aggrieved and dissatisfied by the said judgment and order of conviction, the Accused has assailed the same in the present appeal and prayed for quashment thereof and acquittal of the Accused.

9. Learned Counsel for the Accused canvassed that prosecution case is rested upon two written dying declarations i.e. one recorded by police head constable Bachharam Chavan (Exh.19) and another dying declaration recorded by PW-5 S.E.M. Baburao Kambli (Exh.16) on 22nd February, 2004 at about 9.00 a.m. and oral dying declarations made by victim Changuna before PW-2 Pandharinath Patil, PW-3 Pralhad Patil and PW-4 Eknath Patil but the first dying declaration recorded by PW-9 P.H.C. Chavan has not been recorded in the questions and answers form and there are variances in both the written dying declarations, and therefore, both the said written dying declarations are not truthful and voluntary, and hence, same cannot form the basis for conviction. It is also vehemently argued by Learned Counsel for the Accused that the alleged oral dying declarations made by deceased Changuna before PW-2 Pandharinath Patil, PW-3 Pralhad Patil and PW-4 Eknath Patil are made before the close relatives i.e. brothers of victim Changuna and even the versions given by the said three witnesses in respect of alleged oral dying declarations made by Changuna before them, differ from each other. According to Learned Counsel for the Accused, the medical evidence adduced/produced by the prosecution through PW-8 Dr. Shripad Pathak and P.M. notes Exh.25 reflects that victim Changuna sustained 46% burns and the said deceased Changuna died almost after about one month i.e. 20th February, 2004 from the date of the occurrence of the incident and the said very injuries of 46% are indicative of the fact that the Accused did not commit murder of his wife Changuna intentionally and knowingly. It is also canvassed that the prosecution has failed to produce the medical case papers on record and there is no evidence on record in respect of the medical treatment given to the victim Changuna since her admission into the hospital till her death i.e. from 21st January, 2004 to 20th February, 2004. Moreover, Learned Counsel for the Accused also pointed out that there is no direct evidence about the occurrence of the incident and therefore, the motive assumes prime importance but the prosecution has failed to establish the said motive. Accordingly Learned Counsel for the Accused canvassed that the prosecution has failed to make out the case against the Accused for the offence punishable under Section 302 of I.P.C. and present case would come under the purview of Section 304 Part-I of I.P.C., and hence, urged that conviction and sentence imposed upon the Accused for the offence punishable under Section 302 of I.P.C. deserves to be quashed and set aside and Accused is required to be convicted under Section 304 Part-I of I.P.C. and considering the period custody/ imprisonment undergone by the Accused since 2004 reasonable sentence is required to be imposed upon him, by allowing the present appeal partly.

10. Per contra, the learned APP opposed the present appeal vehemently and submitted that there is cogent evidence of two written dying declarations i.e. Exh.19 and Exh.16 recorded by PW-9 P.H.C. Chavan and PW-5 S.E.M. Kambli respectively and both the said dying declarations involve the Accused in the crime and also both the said written dying declarations are consistent with each other and also they are voluntary and truthful. Moreover, it is also submitted that the oral dying declarations made by victim Changuna before PW-2 Pandharinath Patil, PW-3 Pralhad Patil and PW-4 Eknath Patil have not been shaken in their respective cross examinations and the said oral dying declarations strengthens the complicity of the Accused in the crime. It is also argued that the incident occurred on 21st January, 2004 but the Accused was absconding till 6th February, 2004 and came to be arrested on the said date, and said conduct of the Accused speaks volumes for itself. In fact, in the natural course of events, the Accused who is the husband of victim Changuna would have made efforts to shift her to the hospital but so did not happen and on the contrary, he was absconding for the substantial period of 15 days, which is indicative of his involvement in the offence. Accordingly, Learned APP submitted that there is no glaring mistake in the impugned judgment and order of conviction, and therefore, learned APP supported it and submitted that no interference therein is warranted in the present appeal, and hence, urged that present appeal be dismissed.

11. After considering the rival submissions advanced by Learned Counsel for the parties, at the outset, the prosecution case is rested upon two written dying declarations Exh.19 and Exh.16 respectively and oral dying declaration made by victim Changuna before her brothers viz. PW-2 Pandharinath Patil, PW-3 Pralhad Patil and PW-4 Eknath Patil and the medical evidence adduced/produced by the prosecution through PW-8 Shripad Pathak and P.M. notes Exh.25 disclosing that victim sustained 46% burns and succumbed to the said injuries due to septicaemia due to superficial to deep burns. The first dying declaration was recorded by PW-9 P.H.C. Chavan and his evidence discloses that according to the instructions he went to Civil Hospital, Thane on 22nd January, 2004 at about 8 to 8.15 a.m. and gave requisition letter (Exh.32) to Medical Officer and met Medical Officer PW-7 Dr. Tejaswini Bhagat examined the patient viz. Changuna Mhaske and certified that she was in position to give the statement, and accordingly, PW-9 P.H.C. Chavan put the questions to the said patient Changuna and replies given by her were recorded by him in the form of statement wherein she stated that on 21st January, 2004 at about 8.00 p.m. when she was chit-chatting with her friend viz. PW-1 Jyoti Mhatre in her house, her husband Kailas was also present there and he had consumed liquor and while chitchatting he abused the victim, and therefore, her friend Jyoti went away and then her husband i.e. Accused picked up kerosene can and poured it from the said can on her person and set her on fire by lighting match stick due to which she caught fire, but the Accused sitting on bed and was watching how victim was burning but did not extinguish the fire. She raised the shouts and thereupon neighbours assembled and extinguished the fire and her brother shifted her to the hospital. He also stated that he recorded the statement of Changuna as per her narration and contents thereof read over to her of which contents she admitted to be correct and put her thumb impression and he also signed on it and said statement is produced at Exh.19.

12. In the cross examination, he admitted that he has not made entry in the personal diary before going to Civil Hospital and also admitted that he has not mentioned time when he started recording the statement of the Changuna and when it was completed. He also admitted that he has not mentioned name of Changuna Mhaske against the thumb impression on the statement Exh.19 and also not mentioned whether the said thumb impression is of hand or toe. Few suggestions were given to him in the cross examination but same were denied by him as well as Accused put forth his case that Changuna stated before him that her husband lost his job so she was doing job but her income was not sufficient to maintain their family, and therefore, she was fed up and committed suicide but same was denied by him. Moreover, it is also material to note that since there is no direct evidence against the Accused and since the prosecution case is rested upon the circumstantial evidence, the motive plays vital role and assumes a prime importance but we found that the prosecution has not established any strong motive against the Accused in respect of alleged offence.

13. The deposition of PW-9 P.H.C. Chavan reflects that after going to Civil Hospital, Thane he ascertained that patient Changuna was in a fit condition to give the statement through PW-7 Dr. Tejaswini Bhagat who examined her, and thereafter, he put the questions to her and recorded replies given by her in the form of statement wherein the said victim has categorically involved the Accused as the perpetrator of the crime. Moreover, he also read over the narration recorded in the statement to victim Changuna which she admitted to be correct and thereafter he obtained her thumb impression thereon and he also signed on it and the said statement is produced at Exh.19. Some minor admissions given by the said witness in the cross examination in respect of the non-mentioning of date and time of recording of the said statement and not making the entry in the personal diary before proceeding to Civil Hospital, Thane and not mentioning name of victim near the thumb impression and not mentioning whether it is the thumb impression of hand or toe are the minor discrepancies in the said testimony which will not diminish its credibility. Moreover, the dying declaration Exh.-19 recorded by PW-9 P.H.C. Chavan and the contents and tenor thereof reflects that, it is a truthful and voluntary statement given by the victim Changuna and deserves to be accepted as a reliable and incriminating piece of evidence against the Accused.

14. The testimony of PW-5 Baburao Kambli also discloses that in pursuance of the request made by the police personnel he visited Civil Hospital, Thane on 22nd January, 2004 at about 8.30 a.m. and went to the burns ward and ascertained through the Medical Officer PW-7 viz. Dr. Tejaswini that Changuna Mhaske was in a fit state of condition to give the statement, and accordingly, obtained doctor's endorsement, and thereafter, put questions to the said patient Changuna Mhaske and replies given by her were recorded in the questions and answers form. He also read over the said statement to Changuna and she admitted it to be correct and thereafter her thumb impression was obtained thereon, and he also signed on it an d the said statement is produced at Exh.16. He also asked her whether she was giving the statement under any pressure but she replied in the negative. She further stated that her husband i.e. Accused was harassing her and her brother admitted her into the hospital. She categorically stated that her husband poured a kerosene on her person and set her on fire by lighting match stick. In cross examination, he stated that there were burn injuries on her face, neck, chest and hands but there was no injury on the finger of his hand. Searching cross examination of the said witness was made but nothing beneficial to the Accused elicited there-from. The said piece of evidence and the deposition of PW-5 Baburao Kambli has not been shaken therein. Accordingly, the testimony of PW-5 Baburao Kambli and dying declaration on 22nd January, 2004 Exh.16 involves the Accused in the crime.

15. That takes us to the oral dying declaration made by victim Changuna before her brothers viz. PW-2 Pandharinath Patil, PW-3 Pralhad Patil and PW-4 Eknath Patil which categorically stated that after shifting Changuna to Civil Hospital, Thane enquiry was made by them with Changuna that what had happened and thereupon she informed that her husband i.e. Accused poured kerosene on her person and set her on fire by lighting match stick due to which she was burnt. Then she died in the hospital. The said witnesses were cross examined at length but testimony of the said witnesses have not been shattered in the cross examination. Moreover, few suggestions were give to them which were denied by them. The testimonies of the said witnesses PW-2, 3 & 4 appears to be natural and the oral dying declarations given by victim Changuna before them as reflected in the said testimonies has not been shaken, which is in consonance with the aforesaid two written dying declarations, and hence, it amounts to incriminating piece of evidence against the Accused.

16. The medical evidence adduced/produced through PW-8 Shripad Pathak and P.M. notes Exh.25 reflects that victim Changuna sustained 46% burns and the said injuries were antemortem. According to PW-8 Shripad Pathak, the patient died due to septicaemia due to 46% superficial to deep burns and he prepared the postmortem report which is produced at Exh.25. He also stated that the above referred burn injuries are sufficient to cause death of a person in ordinary course of nature. In cross examination, he stated that he cannot opine whether the above referred injuries can be suicidal also. He also stated that he cannot state whether proper treatment was provided to her. He also denied the suggestions given to him in the cross examination. The testimony PW-8 Dr. Shripad Pathak and P.M. notes Exh.25 cumulatively indicate that victim Changuna met with unnatural death due to 46% burns. Moreover, the inquest panchnama i.e. 21st February, 2004 i.e. Exh. 9 is also in consonance with the said proposition.

17. Moreover, the deposition of Jyoti Mhatre PW-1 also discloses that on 21st January, 2004 at about 7.00 to 7.30 p.m. she has visited the house of Changuna and was chit-chatting with her and at that time Accused was also present in the said house. When she and victim were chit-chatting, Accused Kailas abused Changuna and therefore PW-1 Jyoti Mhatre went to her house and later on she came to know that Changuna died due to burns. The said testimony establishes the fact that the Accused and victim Changuna were in the house of the Accused and at about 7.00 to 7.30 p.m. on 21st January, 2004 she saw them together lastly i.e. before the occurrence of the incident.

18. Having taken the survey of the ocular and documentary oral evidence adduced/produced by the prosecution, we have no hesitation to come to the conclusion that the Accused is the perpetrator of the crime. However, the question arises that what crime the Accused has committed. Since the dying declaration Exh.19 explicitly discloses that the Accused had consumed liquor at the time of occurrence of the incident and he was in drunken state. Moreover, it is crystal clear from the medical evidence as mentioned that victim Changuna sustained 46% burns and although the incident occurred on 21st January, 2004 the victim expired on 20th February, 2004 i.e. almost after one month, and pertinently, prosecution has not produced any medical case papers of the victim Changuna disclosing that what type of treatment was given to her and the said discrepancies and deformities speak volumes for themselves. Hence having considered the said aspects, and more particularly considering the position that Accused was in drunken state and the victim Changuna sustained 46% burns who died after one month from the date of incident and nonproduction of her medical case papers by the prosecution and nondisclosure of the treatment given to her during the said period from 21st January, 2004 to 20th February, 2004, we are of the considered view that the prosecution has failed to make out the offence against the Accused punishable under Section 302 of I.P.C. but the Accused deserves to be convicted under Section 304 Part-I of I.P.C. and accordingly, the conviction and sentence imposed upon the Accused for the offence punishable under Section 302 of I.P.C. deserves to be quashed and set aside and the Accused is required to be convicted for the offence punishable under Section 304 Part-I of I.P.C., and considering the period undergone by him in custody/jail from 6th February, 2004, we are of the opinion that, imposition of sentence of R.I. for 10 years and fine of Rs.2000/-, in default of payment of fine to suffer further R.I. for three months upon the Accused, allowing the present appeal partly, shall meet the ends of justice.

19. In the result, present appeal is partly allowed and the conviction and sentence inflicted upon the appellant-accused for the offence punishable under Section 302 of I.P.C. stands quashed and set aside and instead the accused is convicted for the offence punishable under Section 304 Part-I of I.P.C. and sentenced to suffer R.I. for 10 years and to pay fine of Rs.2000/-, in default to suffer further R.I. for three months.

20. The order regarding set off in the substantive sentence and disposal of the muddemal property stands confirmed.

21. The appeal is disposed of accordingly.

Ordered accordingly.