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2008 DIGILAW 559 (BOM)

Uttam s/o Tukaram Khupse v. State of Maharashtra

2008-04-15

N.V.DABHOLKAR, S.UMA BORA

body2008
ORAL JUDGMENT : ( PER : N.V. DABHOLKAR, J.) 1. Feeling aggrieved by his conviction and sentence for the offence punishable under section 302 of Indian Penal Code, the original accused has approached this court by an appeal under section 374 (2) of the Code of Criminal Procedure. The appellant was tried for the offences punishable under sections 302, 498A of Indian Penal Code by Adhoc Additional Sessions Judge, Nanded. At the conclusion of the sessions case no. 149/05, the learned Judge was pleased to convict the appellant for offence punishable under section 302 of Indian Penal Code and he is sentenced to suffer imprisonment for life and fine Rs.500/- and in default, simple imprisonment for three months. He is acquitted so far as charge for the offence punishable under section 498A of Indian Penal Code is concerned. The judgment was rendered on 9-3-2006. 2. Prosecution story can be narrated in brief as follows :- . The incident in question is said to have occurred on 9-8-2005 at about 3.30 or 4.00 pm at the residence of the accused. The victim of the incident namely Kantabai was wife of accused. They were married about 15 years ago. The couple was having three children i.e. a daughter and two sons. It is the contention of relatives of deceased Kantabai that accused had started harassing her for satisfying his demand for Rs.10,000/- and as the parents were not able to satisfy the said demand, Kantabai had stayed with the parents (at village Borwadi) nearly for a period of 4 to 5 months. She was brought for cohabitation to village Tatkalwadi just a fortnight prior to the alleged incident. There is no evidence giving direct account of the incident in question. But it appears that Girjabai (wife of PW 1 Datta) and Shantabai (PW 6) who were sisters of the victim were the persons to reach the location before anyone else and to learn about what happened, from the victim Kantabai herself. . It appears that after learning from Kantabai that she was set on fire by the accused, the relatives including Datta and others took the victim firstly to rural hospital, Bhokar and subsequently to civil hospital, Nanded. Kantabai is said to have succumbed to death on 10-8-2005 at 01.00 hours i.e. just after mid night between 9th and 10th of August. It appears that after learning from Kantabai that she was set on fire by the accused, the relatives including Datta and others took the victim firstly to rural hospital, Bhokar and subsequently to civil hospital, Nanded. Kantabai is said to have succumbed to death on 10-8-2005 at 01.00 hours i.e. just after mid night between 9th and 10th of August. Initially, A.D. was registered by police station Bhokar on the basis of report from police station Vazirabad of Nanded. This was only after report that Kantabai died of burn injuries. Infact, statement of Datta recorded only on 11-8-2005 is treated as First Information Report. After completion of investigation, the charge sheet was filed in the court of Judicial Magistrate First Class, Bhokar and after committal of the case, accused was tried by Adhoc Additional Sessions Judge, Nanded. . Prosecution has in all examined 8 witnesses. PW 1 Datta is complainant. He is brother in law of victim Kantabai i.e. husband of victim’s sister Girjiabai. PW 2 Tukaram and PW 3 Bajirao are Sarpanch and Police Patil of the village. They met the complainant and his relatives on way between Bhokar and Tatkalwadi. While the relatives were taking the victim to Bhokar in an auto-rickshaw, Police Patil and Sarpanch were returning from Bhokar and upon learning the details of the incident from the relatives, they travelled back with the victim to Bhokar and subsequently to Nanded. PW 5 Kishan is father of the victim and PW 6 Shantabai is the sister, who was the first amongst the examined witnesses, to reach the spot. PW 4 Kondiba is panch witness of the spot panchanama. Entire investigation is carried out by PSI Subhash Pedewad (PW 7). Dr. Hemant had carried out post mortem on the dead body. Finding that victim had suffered 92% burn injuries, he has also opined that cause of death was due to shock due to burns. 3. Learned Sessions Judge upon appreciation of evidence found that the story that accused set the victim Kantabai (his wife) on fire by using sweet oil and kerosene and caused her death was a consistent story narrated not only by the relatives of the victim but supported by evidence of independent witnesses and, therefore, he has arrived at conclusion that charge under section 302 of Indian Penal Code is brought home. So far as charge under section 498A of Indian Penal Code is concerned, the learned Judge has found that the story regarding demand of Rs.10,000/- was not convincing because the same was not narrated by some of the witnesses during their statements as recorded by the police. The learned Judge also found that plea of alibi raised by the accused was a weak defence, unsupported by any evidence; either by oral or documentary. Consequently, the learned Judge was pleased to record conviction for the offence under section 302 of the Indian Penal Code and acquittal so far as charge under section 498A of Indian Penal Code. 4. Heard respective counsel. Learned counsel for the appellant and learned APP together have taken us through the entire evidence that is placed on record and it must be said that the prosecution evidence is full of reference to oral dying declaration by deceased Kantabai. PW 6 Shantabai appears to be the first person to reach the spot. She says that she was returning from field at about 5.00 pm and she heard the noise of weeping from the house of Kantabai. Upon entering into the house of sister, she found Kantabai lying on the wooden cot and having suffered burn injuries. Shantabai found that Kantabai was talking to her elder sister i.e. Girjabai and she told Girjabai that her (Kantabai’s) husband had burnt her by pouring kerosene and sweet oil upon her person. Shantabai also asserts that sister Kantabai narrated her the same story. It appears that Girjabai, PW 1 Datta, PW 5 Kishan and others took victim Kantabai to rural hospital, Bhokar. Shantabai does not seem to have accompanied the victim. . According to PW 1 Datta, on returning home from the field at about 6.00 pm, he noticed that his wife (Girjabai) was not present in the house and he went to the house of Kantabai, feeling that Girjabai might have been to the place of sister Kantabai. Upon reaching the place of Kantabai and finding that Kantabai had suffered burn injuries, PW 1 Datta enquired her the cause and Kantabai is said to have narrated that she was set on fire by her husband by using kerosene. Kantabai also narrated the incident to have occurred sometime between 3.00 pm to 4.00 pm. Upon reaching the place of Kantabai and finding that Kantabai had suffered burn injuries, PW 1 Datta enquired her the cause and Kantabai is said to have narrated that she was set on fire by her husband by using kerosene. Kantabai also narrated the incident to have occurred sometime between 3.00 pm to 4.00 pm. PW 1 Datta confirms presence of Girjabai and Shantabai, by the time he reached the place of victim Kantabai. From the narration of Datta it appears that parents of victim reached Tatkalwadi at about 7.00 pm and thereafter the victim was shifted to rural hospital, Bhokar in an auto-rickshaw. It is the claim of PW 1 Datta that Sarpanch and Police Patil (PW 2 Tukaram and PW 3 Bajirao) met them on way to Bhokar. Infact, this pair of village officers was returning from Bhokar to Tatkalwadi. But they changed their mind and accompanied the victim in the same rickshaw with which they were returning. . On reference to deposition of Sarpanch Tukaram as also Police Patil Bajirao, both confirm this story. They narrate the relatives of the victim to have requested them to accompany them to Bhokar. On reaching rural hospital, Bhokar, relatives of the victim namely Datta and Kishan are said to have narrated to Sarpanch and Police Patil that accused had set Kantabai on fire by using kerosene and sweet oil. The Sarpanch claims that at rural hospital he personally enquired Kantabai about the incident and she narrated to have suffered burn injuries as a result of action on the part of her husband, who had poured sweet oil and kerosene on her person and set her on fire. According to Kantabai, the incident took place at about 3.30 pm. Police Patil Bajirao is not a witness to this second oral dying declaration to Sarpanch because he had got down at square and proceeded to police station Bhokar, presumably to give intimation of the incident. However, according to Bajirao, at rural hospital, the doctor had enquired the victim and she disclosed that her husband had burnt her. However, this turns out to be hearsay knowledge when we refer to admission in cross examination of Bajirao that Kantabai did not talk to the Medical Officer in presence of PW 3 Bajirao. . PW 5 Kishan is father of the victim. However, this turns out to be hearsay knowledge when we refer to admission in cross examination of Bajirao that Kantabai did not talk to the Medical Officer in presence of PW 3 Bajirao. . PW 5 Kishan is father of the victim. He confirms that his son in law Shankar (not examined) informed him at about 5.00 pm about the incident, whereafter he proceeded to Tatkalwadi. Father on reaching Tatkalwadi enquired daughter Kantabai about the incident and Kantabai is said to have disclosed father about husband having set her on fire. 5. Taking into consideration all the details, it is evident that victim Kantabai made oral dying declaration to her sisters Girjabai and Shantabai, who were the first to reach the house of accused and the victim. Second time she made oral dying declaration to PW 1 Datta, who reached there in search of his wife Girjabai. Third oral dying declaration was to father Kishan who reached Tatkalwadi at about 7.00 pm upon getting message from his son in law Shankar. Fourth and last dying declaration was to the Sarpanch after the victim reached rural hospital, Bhokar with all the relatives. We are not taking into account fifth oral dying declaration said to have been made to the Medical Officer, Bhokar, as per narration of Bajirao. This is for two reasons; 1) that Medical Officer is not examined and, 2) statement to Medical Officer, admittedly, was not made in presence of witness Bajirao who deposed about the same. It must be said that there is a consistent story narrated by as many as five prosecution witnesses which includes three relatives (Datta, Kishan and Shantabai) and two independent witnesses (Tukaram and Bajirao) who were the village officers, at the material time. 6. Before going to the propositions submitted by the learned counsel for the appellant, we wish to record the replies to certain questions by the appellant/accused during the course of statement under section 313 of the Code of Criminal Procedure. There is no bar, nay the answers to the questions put to the accused during the course of statement under section 313 of the Code of Criminal Procedure, can be taken into consideration while appreciating evidence. We are quoting only those questions and answers whereunder accused has made admissions. Otherwise, accused has replied all the questions by saying "it is false". In reply to questions no. We are quoting only those questions and answers whereunder accused has made admissions. Otherwise, accused has replied all the questions by saying "it is false". In reply to questions no. 9, the accused has admitted that Kantabai expired at about 1.00 am, while she was under treatment. By answering questions no. 11 as "it is true", the accused has admitted situation of the house that was occupied by the couple. In the affirmative answer to question no. 15, the accused has admitted that daughter Pramila was in the field (agricultural land), one son was in the school and another son was with the grand parents at Borwadi, at the material time. By affirmative reply to question no. 16, the accused admits that the incident took place a day before Panchami festival and accused who otherwise does mason work at various places had returned to village Tatklawadi a month prior to incident. Accused admits that he was not present for the funeral of his wife Kantabai nor he had accompanied his wife to rural hospital, Bhokar and thereafter to civil hospital at Nanded. This is the result of affirmative reply to question no. 41. It was put to accused by way of question no. 47 that about 15 to 20 days before the alleged incident, he had brought Kantabai from the house of her parents and accused has admitted this position by an affirmative reply. . Accused has pleaded that his father in law had filed a case against him about 3 to 4 years prior to alleged incident. He contended that father in law is deposing false against him but he was unable to explain as to why other witnesses are deposing false against him. Although he pleaded that he is involved in a false case, he has not been able to explain the reason why he must have been framed. 7. Learned counsel Mrs. Kazi raised following propositions in order to challenge the impugned judgment; i) All witnesses deposing in favour of prosecution are interested witnesses. ii) Chemical Analyser’s report does not show existence of traces of sweet oil and therefore consistent dying declarations about which the witnesses have deposed become doubtful. iii) There is no explanation as to why written dying declaration was not recorded. iv) There is delay in lodging first information report. According to learned APP, prosecution has examined witnesses who are not related. iii) There is no explanation as to why written dying declaration was not recorded. iv) There is delay in lodging first information report. According to learned APP, prosecution has examined witnesses who are not related. Absence of sweet oil traces in the saree at the time of analysis does not necessarily lead to inference that witnesses are making out a false case of dying declaration. Delay, according to learned APP, is properly explained. The circumstances speak as to why there could have been delay in reporting the matter to police station and why the dying declaration could not have been recorded. 8. Statement by learned counsel for the appellant that all witnesses examined are interested, is not sustainable for simple reason that prosecution has examined Sarpanch Tukaram and Police Patil Bajirao. The defence has not been able to demonstrate during their cross examination any relationship of these witnesses with the victim nor any other circumstance as to why they should be interested in deposing against the accused. . So far as the contention that the Chemical Analyser’s report does not indicate existence of sweet oil residues in the saree of the victim that was attached, we are unable to agree with the statement of learned counsel; that the same makes the oral dying declarations untrustworthy. All the witnesses who narrated about the dying declaration of the victim have said that deceased stated that she was set on fire by her husband (accused) by using sweet oil and kerosene. On reference to panchanama of scene of occurrence proved by PW 4 Kondiba which is at exh. 16, police have recovered a bottle of capacity 100 ml. and smelling of kerosene. In the description of the location, there is a frying pan containing very little sweet oil. Eventually, this frying pan with sweet oil is not attached by the Investigating Officer. However, lacunae in the investigation may not be sufficient to discredit the veracity of the witnesses. We are unable to agree with the submission of learned counsel of the appellant that because the analyser’s report does not show sweet oil residues in the saree of the victim, the dying declarations of the victim spoken about by as many as five witnesses can be termed to be false statements. 9. We are unable to agree with the submission of learned counsel of the appellant that because the analyser’s report does not show sweet oil residues in the saree of the victim, the dying declarations of the victim spoken about by as many as five witnesses can be termed to be false statements. 9. Reliance is placed upon the judgment in the matter of Thulia Kali vs. The State of Tamil Nadu AIR 1973 Supreme Court 501 and more particularly contents in paa no. 12 :- First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed. The names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version. Exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. When an occurrence is not reported for more than 20 hours after the occurrence eventhough the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence. Learned counsel placed reliance upon the concluding part of the observation. In the matter at hands, first information report was registered only on the basis of statement of Datta recorded on 11-8-2005. However, in the matter at hands, we must say that the delay stands explained by the circumstances. In this context it must be noted that there was an attempt to report the matter to the police station which was frustrated by the police. However, in the matter at hands, we must say that the delay stands explained by the circumstances. In this context it must be noted that there was an attempt to report the matter to the police station which was frustrated by the police. We are referring to deposition of PW 3 Bajirao, police patil of the village, who accompanied the victim to rural hospital, Bhokar and also to civil hospital, Nanded thereafter. We quote:- I alight from the auto at the square at Bhokar and went to police station and Sarpanch and others went to civil hospital, Bhokar. I have informed to police, Bhokar about the burning incident of Kantabai. Police did not take note of my information in writing and disclosed him that if the injured is admitted in the hospital, doctor will send the requisition letter. It is evident that attempt to report the matter was frustrated by negative approach of the police machinery towards the issue. The incident took place sometime at about 4.00 pm. The close relatives had gathered at about 5.00 pm. The journey of the victim started at about 7.00 pm after arrival of her father, initially to rural hospital, Bhokar and then to civil hospital, Nanded. The party reached Nanded at about 10.00 pm and the victim expired three hours thereafter. This explains not only the reason for delay in lodging the first information report but also offers explanation as to why recorded dying declaration has not come on record. The victim suffered 92% burn injuries. It was natural that the doctors at Bhokar in all probabilities due to inadequacy of the infrastructure; were not willing to retain the patient at Bhokar and Kantabai was therefore immediately despatched to Nanded after some first aid. Even in the judgment relied upon by learned counsel Mrs. kazi, the Supreme Court has not laid down as an invariable rule that conviction cannot be based upon the evidence, when there is delay in lodging first information report. Hon’ble the Apex Court has only recorded a caution that it is unsafe to base conviction upon evidence when there is unexplained delay in lodging first information report. In the matter at hands, this is not a case wherein two groups were involved or that it was necessary to ascertain as to who were the accused and what were the roles played by them. In the matter at hands, this is not a case wherein two groups were involved or that it was necessary to ascertain as to who were the accused and what were the roles played by them. There was a single victim and single assailant. The version of the victim was heard by the witnesses atleast 3 to 4 times and the veracity of the version is confirmed by factual situation at the residence of the accused. We feel that inspite of some infirmities in the evidence that is placed before the sessions court by the prosecution; the consistent version of three relatives and two village officers talking about oral dying declaration and a consistent story coming through the same cannot be brushed aside as unreliable. Dying declaration stands supported by Analyser’s report and the conduct of the accused as can be gathered from his own replies to the questions during statement under section 313 of the Code of Criminal Procedure. It was argued by learned counsel Mrs. Kazi that presence of accused at the residence on that day is not proved by the prosecution. We have quoted the replies of the accused during statement under section 313 of Code of Criminal Procedure quite elaborately in the earlier part of this judgment and those replies confirm that he was not else where but at Tatkalwadi since 15 days prior to incident. He had brought Kantabai from the parents place about a fortnight before the alleged incident. He was not the one who accompanied the victim from residence to rural hospital Bhokar and civil hospital, Nanded thereafter. He was also conspicuously absent for the funeral of his wife. PSI Subhash (PW 7) has stated as follows during the course of his cross examination :- . I have arrested the accused on 11-8-2005 at 9.05 pm. Accused was found on a canal of Bhosi - Tatkalwadi and he was brought to police station. Arrest panchanama now shown to me is the same, it bears my signature, the same is at exh. 26. It is evident that accused although residing at village Tatkalwadi since a fortnight prior to alleged incident, was missing from the village till the time he was arrested on 11-8-2005 at 9.05 pm. . Arrest panchanama now shown to me is the same, it bears my signature, the same is at exh. 26. It is evident that accused although residing at village Tatkalwadi since a fortnight prior to alleged incident, was missing from the village till the time he was arrested on 11-8-2005 at 9.05 pm. . In this context, the fact that accused has replied some questions in affirmative and that accused has raised some defence, not of bare denial but claiming to have been falsely prosecuted, assumes importance. Accused does not talk anything as to when he learnt about his wife having suffered burn injuries and having died as a result of burn injuries. Infact, when he was cohabiting with the wife at the material time, if he was not the wrong doer, he ought to have come on the scene as an innocent person probably in the same manner in which witnesses Shantabai and Datta arrived at the scene. Ordinarily, it could have come from his mouth that on returning home after day long duties, he learnt about his wife having suffered burn injuries and thereafter he accompanied the victim to Bhokar and Nanded in an attempt to secure prompt medical attendance to his wife. No such version has come from the accused even in the statement under section 313 of the Code of Criminal Procedure or by way of suggestion to the prosecution witnesses during the course of their cross examination. We feel that the passive conduct of the accused also lends support to the prosecution. 10. Learned counsel Mrs. Kazi places reliance upon the judgment reported in 2005 All M.R. (3) 113 Abdul Hakim Noormohammed Bhati vs. State of Maharashtra. Two dying declarations in that matter as deposed to by witness Nemichand and Fargade were disbelieved because although consistent, those were felt to be not passing the test of natural and reliable. Those were also held to be not corroborated by other circumstances. The oral dying declarations before us do not suffer from such vices. The victim talked to her sisters and her father as also to husband of the sister is most natural and, therefore, consistent oral dying declarations are found to be trustworthy. Those were also held to be not corroborated by other circumstances. The oral dying declarations before us do not suffer from such vices. The victim talked to her sisters and her father as also to husband of the sister is most natural and, therefore, consistent oral dying declarations are found to be trustworthy. In the matter of Madhukar Ramsingh Alkari vs. State of Maharashtra reported in 2007 All M.R. (cri) 3182 the other Division Bench of this High Court while dealing with the oral dying declarations referred to observations of the Supreme Court in the matter of Darshandevi vs. State of Punjab 1995 Supp. 4 SCC 126 and the observations were to following effect :- . Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. On examination of oral dying declarations deposed to by five witnesses in the matter at hands, we have found those to be quite consistent, narrating exactly the same story though not in a stereo type or tape recorded manner. We have found those dying declarations corroborated by other circumstances as discussed hereinabove. 11. For the reasons, we find interference in the impugned judgment and conviction to be not necessary. Appeal is therefore dismissed. . 12. Certified copy of this judgment be furnished to the appellant/accused free of cost, through jail authorities. 13. Mrs. Kazi was appointed lawyer to prosecute the appeal, at the cost of the State. We quantify her professional charges at Rs.4,000/-. Appeal dismissed.