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2007 DIGILAW 321 (BOM)

Vaijnath s/o. Ramji Waman v. State of Maharashtra

2007-03-07

S.B.DESHMUKH, S.P.KUKDAY

body2007
S.P. KUKDAY, J.:- Appellant is to convicted for committing murder of his wife and is sentenced to suffer rigorous imprisonment for life for the offence punishable under section 302 and rigorous imprisonment, for two years for offences punishable under section 498-A of the Penal Code with default stipulation for the payment of fine, by Additional w Sessions Judge, Hingoli. This order of conviction and sentence dated 14th March, 2005 y is impugned in the present appeal. 2. Brief facts, leading to the filing of If this appeal, are that Murlidhar Bapurao Jadhav (P.W.4) is working as security guard in T.V. Centre at Hingoli. He constructed a house in Chandrashekhar, Hingoli with his co-worker Shri. Uttamrao Palve. First husband of his daughter Usha (since deceased) died of H.I.V. Her father-in-law paid Rupees 1,00,000/- to her for her maintenance. Appellant was practising law in the courts at Hingoli. With the help of Advocates, Kawarkhe, Adv. Banger and some other lawyers, marriage of Usha was settled with the appellant who was a divorcee. Deceased remarried appellant, on 16th June, 2002. After the marriage, P.W. 4 rented first floor of the house of Shri. Ashok Mandade, which is near to his own house and the newly married couple, started living at the house vacated by him. From the very next day of the marriage appellant started suspecting chastity of his wife and was ill-treating her. Since three months prior to the incident the appellant was asking deceased to bring Rs.1,00,000/- from her parents. Prior to the incident, on 26th May, 2003 deceased demanded Rs.5/- for cosmetics. Appellant beat her with leather belt for demanding money for the cosmetics and threatened to divorce her. On 31st May, 2003, in the morning, appellant asked the deceased to bring Rs. 1,00,000/- from her father. He severely beat her and threatened to kill her if she failed to bring money within 24 hours. As she had suffered unbearable pain, the deceased was crying. Ramesh, son of Shri. Palve, appraised parents of the deceased of the incident at about 11.00 a.m. P.W. 4 and his wife Meerabai (P.W.5) thus went to the house of their daughter. Neighbours Shri. Palve and his wife Laxmibai (P.W.6) were also present at the house of the deceased. The deceased narrated her plight to them. P.W.4 took her to their house. He then went to the court and consulted the mediators. Adv. Neighbours Shri. Palve and his wife Laxmibai (P.W.6) were also present at the house of the deceased. The deceased narrated her plight to them. P.W.4 took her to their house. He then went to the court and consulted the mediators. Adv. Kawarkhe told him that he would reason with the appellant and asked him not to worry. The deceased returned to her house at about 4.00 p.m. On his return to the house, appellant scolded the deceased as her father had been to the court to meet the lawyers. He told her that the domestic disputes should not have been publicized. Appellant further told the deceased that her parents should never come to their house in future. 3. On the morning of 1st June, 2003, Ajay Mendale (P.W.13), son of the landlord ofP.W.4, delivered milk to Palves and the deceased at about 6.00 0' clock in the morning. At that time the appellant was asleep The deceased sent a chit to her parents with P.W.13, informing her parents that the appellant has promised not be beat her if they do not come to her house and do not interfere in her family affairs. At about 9.00 a.m. appellant asked the deceased to bring Rs. l,00,000/- from her father. The deceased told him that her parents are poor and can not pay so much money. In the kitchen of the house appellant poured kerosene fiver her person, set her on fire and left the house. At that time, P.W. 5 was in the gallery of her house. She saw the fire on ota (raised platform in front of the house) and called her husband. They saw the fire and the appellant leaving the house on motorbike. P.W. 6 was informed about the incident by her son Ramesh. By the time she came to the ota of the house of the deceased, her daughter had doused the fire. P.W. 6 saw P.W. 5 at the gallery of her house and by frantic gestures, called her to come immediately. P.W. 4 and P.W. 5 came running to the scene of the occurrence. P.W. 4, who was ahead of his wife. asked his daughter about the cause. After she narrated the incident to him, P.W. 4 went to the kitchen where his daughter was set on fire. On her arrived mother also made queries which were answered by the deceased. P.W. 4 and P.W. 5 came running to the scene of the occurrence. P.W. 4, who was ahead of his wife. asked his daughter about the cause. After she narrated the incident to him, P.W. 4 went to the kitchen where his daughter was set on fire. On her arrived mother also made queries which were answered by the deceased. The deceased was then taken to General Hospital, Hingoli. On her admission at about 9.30 a.m., Medical Officer Dr. Giri (P.W. 10) informed police officer deputed for duty at the hospital police chowki. that a patient with 95% burns is admitted to the hospital. On receipt of this information Head Constable Baburao Potwad (P.W.9) went to the hospital. After verifying from Dr. Giri that the patient is in a fit mental condition to make a statement, he recorded statement of the deceased from 9.45 to 10.10 a.m. in presence of the medical officer and obtained endorsement of this medical officer on the dying declaration (Ex.66). In this dying declaration the deceased stated that her husband was asking her to bring Rs. 1,00,000/- from her father since two months prior to the occurrence and was intermittently subjecting her to beating. On the day of incident, the demand was repeated. When deceased told him that it would not be possible for her father to make payment on that very day, her husband, poured kerosene on her, set her on fire and ran away. Laxmibai saw her and summoned her parents. She was then brought to the hospital. On the advice of the medical officer, the deceased was shifted to Civil Hospital at Nanded by her parents. On receipt of a wireless message from Hingoli, A.S.I. Kisan Bokhare (P.W.14) attached to hospital police chowky at Nanded sent a requisition letter to Special Judicial Magistrate for recording dying declaration of the deceased. In view of this request, Special Judicial Magistrate, Shri. Tuptewar, (P.W. 13) approached medical officer Dr. Ibrahim Kothawale. The medical officer examined the patient and certified that the patient is in a fit mental state to make a statement. P.W. 3 recorded the statement of the deceased during 1.10 p.m. to 1.25 p.m. (Ex.40) in presence of the medical officer. He obtained endorsements of the medical officer regarding fitness of the deceased to make a statement at the beginning and at the end of the statement. P.W. 3 recorded the statement of the deceased during 1.10 p.m. to 1.25 p.m. (Ex.40) in presence of the medical officer. He obtained endorsements of the medical officer regarding fitness of the deceased to make a statement at the beginning and at the end of the statement. In this statement same story is narrated by the deceased in brief. One copy of this statement was given to the Chief Judicial Magistrate and one copy was forwarded to the investigating officer. In the mean while statement (Ex.66) was sent to City Police Station. Offence punishable under Section 307 and 498-A, I.P.C. was registered against the appellant on the basis of this statement. P.I. Alsatwar took over the investigation and visited the spot. He attached burnt pieces of sari, broken pieces of mangalsutra, match box, two burnt match sticks, pieces of tiles and white shirt, under the Panchanama of the scene of occurrence (Ex.34) in the presence of witnesses. He also seized note book (Article A) of the deceased produced by her father in which the deceased has made a memorandum of the beating given to her by appellant on 25th June, 2003 and chit (Ex.75/ 4) sent by her to her father on the day of the incident, under Panchanama (Ex.35). The deceased expired on 3rd June, 2003, P.W. 14 held Inquest of the dead body (Ex.31) and sent the dead body for post-mortem. Dr. Soni (P.W. 8) performed the post-mortem and prepared post-mortem report (Ex.61). He noticed that the deceased had suffered 98% burns and opined that the cause of death is shock due to bums. The post-mortem report and P.M. report were forwarded to the investigating officer. During the course of the investigation the note book, having specimen writing and the memoranda of the deceased and chit written by her were sent to the Handwriting Expert. Handwriting Expert, Shri. Parshuram Dhotre (P.W. 11) examined the writing and found that all the writing referred to him for examination is of the deceased. He thus, submitted expert opinion (Ex.76) with reasons for the opinion (Ex.77). On receipt of the report of Forensic Laboratory (Ex.82) showing that all the articles except match box had tested positive for kerosene test, the appellant were charge-sheeted. At the trial fourteen witnesses were examined. The appellant adopted defence of total denial. 4. He thus, submitted expert opinion (Ex.76) with reasons for the opinion (Ex.77). On receipt of the report of Forensic Laboratory (Ex.82) showing that all the articles except match box had tested positive for kerosene test, the appellant were charge-sheeted. At the trial fourteen witnesses were examined. The appellant adopted defence of total denial. 4. Considering the totality of the evidence, learned Trial Judge rejected the possibility of an accidental death. He found that the dying declarations and the oral evidence regarding the torture of the deceased, did establish that the appellant has committed murder of his wife. In conformity with these findings, learned Trial Judge convicted the appellant of the offences punishable under sections 302 and 498-A of the Penal Code and sentenced him to suffer imprisonment as stated earlier. 5. In support of the appeal, learned counsel for the appellant Shri. Damle, would argue that both the dying declarations suggest manipulation. It is argued that the first dying declaration is shown to have been signed by the deceased though she had sustained 98% burns; it is too lengthy and is not in the words of the declaring. Veracity of the second dying I. declaration is challenged on the ground that the thumb impression clearly shows all the ridges and grooves though the skin on the thumbs of the deceased was burnt. In support of these contentions reliance is placed on the rulings rep0I1ed in (i) Panchdeo Singh Vs. State of Bihar (2002 Cri.L.J. 973); (ii) State of Punjab Vs. Gain Kaur and another ( AIR 1998 SC 2809 ); (iii) Mohan Sadhu Kawale Vs. State of Maharashtra (2004 Cri.L.J. 4167 : 2004 ALL MR (Cri) 2626) and (iv) Bhagirath Bhaurao Kanade Vs. State of Maharashtra (1996(4) Crimes 65 : 1997 ALL MR (Cri) 362). Learned counsel referred to the fact that P.W. 4 has made an improvement in narrating the incidents of 26th and 31st May, 2003 in as much as no reference to these incidents is found in the statement of the witness recorded under section 161 of the Criminal Procedure Code. 6. In response, learned A.P.P. Shri. K.B. Choudhari submits that no infirmity can be found in both the dying declarations of the deceased. In addition, there is oral as well as documentary evidence to substantiate these dying declarations. 6. In response, learned A.P.P. Shri. K.B. Choudhari submits that no infirmity can be found in both the dying declarations of the deceased. In addition, there is oral as well as documentary evidence to substantiate these dying declarations. Learned A.P.P. would argue that the on pragmatic assessment of the evidence the Trial Judge has recorded correct findings, therefore, it is not necessary to interfere with the impugned order. 7. We may notice the law regarding the dying declaration before adverting to the merits. The principles relating to the reliability or otherwise of the dying declaration are by now well settled. Sanctity is attached to these statements as they are made on the verge of death when the victim abandons all the pride, prejudices, and interest in the worldly affairs. At that moment he is induced to speak the truth. This is the reason why dying declaration inspiring confidence can be accepted without independent corroboration, thought the adversary has no opportunity to test its veracity by cross-examination. It is not necessary that the dying declaration should be recorded in particular form or by the Magistrate. If the statement satisfies conscience of the court regarding its truthfulness, it can be safely acted upon. However, if these is some infirmity in the dying declaration, the court must ensure that the statement is free from tutoring and prompting. It must further be ascertained that the statement is not a produce of imagination of the deceased. The law on this point is laid down by the Apex Court in the matter of Laxman Vs. State of Maharashtra, (2002)6 SCC 710 : [2002 ALL MR (Cri) 2259 (S.C.)]. In para 3 of the report, it is observed: “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence 0 many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence 0 many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has al ways to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normal1y, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion wil1 not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declaring, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to cal1 a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essential1y required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. . Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon proved the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.” 8. In para five, it is further observed: “5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur Vs. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma Vs. State of A.P. l(at SCC p.701, para 8) to the effect that in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma Vs. State of A.P. 1 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunnilal Savji Vs. State of Gujrat.” 9. In support of his contention that longish dying declaration is unreliable, learned Counsel for the appellant has placed reliance on the decision of the Supreme Court in the matter of Panchdeo Singh Vs. State of Bihar (2002 CrLL.J. 973) and the decision of this Court in the matter of Mohan Sadhu Kawale Vs. State of Maharashtra (2004 Cri.L.J. 4167: 2004 ALL MR (Cri) 2626). The observations regarding the long and detailed statement found in these judgments are based on the peculiar facts of those cases. It has to be remembered that there can be no precedent on facts. Each case has to be decided on its own merit. In Panchdeo Singh (supra) the Apex Court did not accept the dying declaration not because it was longish but because in the facts of that case it did not inspire confidence. This is clear from the observations in para 11 of the report that "As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an order of conviction and sentence without there being any corroboration, provided, however, the same brings forth a sense of confidence and trustworthiness in the mind of the court .......”. In the present case, first dying declaration recorded by Head Constable is undoubtedly not recorded verbatim. The police officer recorded the statement in the usual manner with a view to ascertain the facts. It can be seen from the use of word ‘Hunda’ that the statement is not recorded verbatim. The facts are recorded as perceived by P.W. 9 because the demand of Rs. The police officer recorded the statement in the usual manner with a view to ascertain the facts. It can be seen from the use of word ‘Hunda’ that the statement is not recorded verbatim. The facts are recorded as perceived by P.W. 9 because the demand of Rs. 1,00,000/- was not for the dowry but related to the money given to the dece;1sed by her former father-in-law for her maintenance. This dying declaration is recorded on the pattern of recording statement of witnesses under section 161 Cr.P.C. P.W.9 put questions to elicit necessary details required in cases of bride burning. The victim has given answers to the questions put to her and the answers are recorded by P.W. 9 in his language. The gist of this statement is that since two months the appellant was insisting on bringing Rs. 1,00,000/- but the deceased got over the issue by making entreaties. On the day of the occurrence, the appellant insisted on brining money. When the deceased refused to do soon the ground that it would not be possible for her father to make instant payment of such a big amount, the appellant poured kerosene over the deceased, set her on fire and left the house when she started shouting for help. This statement is fully corroborated by the subsequent dying declaration (Ex.40) recorded by Special Judicial Magistrate in question and answer form, in presence of the medical officer. Use of the words etc. would show that the narration of the incident is not a verbatim reproduction of the statement of the deceased. In this statement also P.W. 3 has used his own language and perception. On this occasion the statement made by the deceased is that she married the appellant on 16-2-2002. Her husband was torturing her for last three months to compel her to bring Rs. l,00,000/- On the day of incident, in the morning, appellant poured kerosene over her person, set her on fire by match stick and ran away. The neighbors extinguished the fire. She was then brought to the hospital. Reading of these two statements would show that similar details are given by the declarant in both the statements but are differently recorded by the scribes. The neighbors extinguished the fire. She was then brought to the hospital. Reading of these two statements would show that similar details are given by the declarant in both the statements but are differently recorded by the scribes. The fact that no reference is made to the previous incidents of 26th and 31st, excludes the first dying declaration (Exhibit 66) from the category of the detailed statements which evoke possibility of manipulation. As would be seen later, both the dying declarations are substantiated by the oral, as well as, the documentary evidence. In any event the statement recorded by P.W. 9 is not of the category referred to in the aforesaid decisions relied upon by the appellant. In the circumstances of the present case, we can not persuade ourselves to accede to the contention that the dying declaration (Ex.66) which is also treated as an F.I.R. is unreliable merely because it is more elaborate than the second dying declaration. 10. It is next contended by learned counsel for the appellant that the second dying declaration is tainted by the fact that the thumb impression clearly shows the ridges and grooves of the thumb though the deceased had suffered 98% burns. For this assertion, reliance is placed on the decision of the Supreme Court reported in the matter of State of Punjab Vs. Gain Kaur and another ( AIR 1998 SC 2809 ). In that case, the High Court found evidence of Dr. Ajay Sahni unreliable as he failed to explain how clear thumb mark could appear on the dying declaration though Rita had 100% burns over her body. In the facts of that case, the decision of the High Court was upheld by the Supreme Court. Both these decisions are not applicable to the facts of the present case. In the present case, percentage of the burns initially given by Dr. Giri (P.W. 10) is 95% whereas the percentage given by autopsy surgeon Dr. Soni (P.W.8) in post-mortem report is 98%. P.W. l0 has also given admission in favour of the defence during his cross-examination that he recorded history of accidental burns in the case paper though there is no whisper about the history in his examination-in-chief. The case paper was also not placed on record. During the cross-examination of P.W. 8 it is brought on record that the fingers including the thumb were burnt. The case paper was also not placed on record. During the cross-examination of P.W. 8 it is brought on record that the fingers including the thumb were burnt. The doctor, however, declined to opine whether the thumb impression could be taken if the thumb is burnt. It is pertinent to bear in mind that these admissions are brought on record m the cross-examination of the medical officers who were not aware of the significance of the condition of the thumb and fingers. Thumb impression of the deceased is taken by the Special Judicial Magistrate, on the second dying declaration (Ex.40) in presence of Dr. Ibrahim Kothawale (P.W. 7) Dr. Ibrahim has made a categorical statement that he was with the Special Judicial Magistrate from the beginning till the end and that the statement is recorded in his presence. In his cross-examination the medical officer stated that he has brought case papers with him and had recorded history of the burns which he found to be 93%. The medical officer also stated that skin of the upper arm was burnt but he did not remember whether skin of the femoral part was burnt or not. Though he was present at the time of taking thumb impression of the deceased on the dying declaration no clarification is sought from him about the skin of the right thumb. The Special Judicial Magistrate who obtained thumb impression of the deceased has categorically stated in his cross-examination that skin of the right hand was burnt to some extent, but the skin of the thumb had not burned (para 7). There is no material on record to show that the Special Judicial Magistrate and Dr. Ibrahim were in any manner interested in the outcome of the case. Both of them are truly independent and un-biased witness. The version of incident found in the second dying declaration agrees with the narration of the incident found in the first dying declaration (Ex.66) which is signed by the deceased. This signature of the deceased is not disputed. The facts of this case show that both dying declarations are substantiated by the ocular as well as documentary evidence in the form of chit and memoranda which are in the handwriting of the deceased. This signature of the deceased is not disputed. The facts of this case show that both dying declarations are substantiated by the ocular as well as documentary evidence in the form of chit and memoranda which are in the handwriting of the deceased. Considering the totality of the evidence the only logical conclusion can be that the calculation of the percentage of the burns was not correctly done and that right hand thumb of the deceased was not affected by the burns. In this view of the matter. we are not inclined to sustain contention of learned counsel for the appellant that second dying declaration is manipulated. 11. It is next contended that evidence of parents of the deceased and neighbors regarding the incidents of 26th and 31st May, 2003 can not be believed in view of the fact that father has admitted to have made improvement over his statement recorded under section 161, Cr.P.C. This contention is also devoid of substance for the reason that the improvement made by the father is only regarding the incident of 31st. However, such an improvement is not found in the evidence of the mother of the deceased and neighbour Laxmibai (P.W.6). Besides, the prosecution has proved chit (Ex.75/4), which refers to the incident which took place on the earlier day and the visit of the father to the Bar. The memorandum of the deceased found in the Note Book refers to her beating because she demanded money for cream. In the face of this formidable evidence. merely because father of the deceased inadvertently did not refer to the incident of 31st in his police statement, no adverse inference regarding reliability of his evidence can be drawn. The oral evidence of P.WA, P.W.S and P.W. 6 is substantiated by the contents of the chit (Ex.75/4) and her memorandum (Ex.75/3). In the chit sent to the father on the very day of the incident the deceased has mentioned that her husband is annoyed because her father had been to the court after the incident of her beating on 31 st and has promised to behave nicely if her parents do not meddle in their family matters and do not visit her house. In the memoranda found in the note book the deceased has referred to her beating on 26tl1 when she demanded money for buying cream. In the memoranda found in the note book the deceased has referred to her beating on 26tl1 when she demanded money for buying cream. These facts recorded by the deceased in her own handwriting just before the incident, deserve credence and silence the criticism of the oral evidence regarding her ill treatment. In this view of the matter, we can not sustain contention of learned counsel for the appellant that the oral evidence of interested witness is unreliable and fails to establish cruel treatment of the deceased for not meeting demand for money, made by the appellant. Both the dying declarations are consistent and are substantiated by the oral, as well as, the documentary evidence on record. In these circumstances, there can be no impediment in accepting the dying declarations as genuine. The facts proved by the prosecution' establish beyond doubt that the appellant was subjecting his wife to cruelty in relation to the demand of money as envisaged by section 498-A of the Penal Code and finally committed her murder by setting her on fire on 1st of June, 2003. 12. Considering the totality of the evidence placed on record, we do not find any fault with the finding of guilt recorded by the Trial Judge. In the result, the appeal fails and is dismissed. Appeal dismissed.