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2013 DIGILAW 86 (BOM)

Eknath s/o. Kusan Raut v. State of Maharashtra

2013-01-11

A.B.CHAUDHARI, A.P.LAVANDE

body2013
JUDGMENT A. P. LAVANDE, J. :- By this appeal, the appellant (hereinafter referred to as the accused), takes exception to the Judgment and order dated 7.5.2008 passed by the Adhoc Additional Sessions Judge-2, Chandrapur in Sessions Case No. 78/2007 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs. 1000/- in default to undergo rigorous imprisonment for three months. The accused has been convicted for causing murder of his wife Chhaya on 26.4.2007 by pouring kerosene on her and setting her ablaze. 2. Briefly, the facts leading to filing of the present appeal are as under: On 27.4.2007, P.W.7 P.S.I., Sanjay Manoharrao Shirbhate while on duty at the Police Station, Gadchandur received memo from the Rural Hospital, Gadchiroli that one Sau. Chhaya Eknath Raut was burnt. Accordingly, he made station diary entry and visited the Rural Hospital and gave a memo for medical examination and after obtaining opinion of the Medical Officer that injured Chhaya was in a position to make a statement, recorded her statement. Thereafter, memo was given to the Executive Magistrate P.W.3 Keshav Bipate who recorded the dying declaration of Chhaya. In the dying declaration made by deceased Chhaya to P.W.3 Keshav Bipate and P.W.7 P.S.I., Sanjay Shirbhate, she stated that on 26.4.2007 at about 7.30 p.m. while she was present in the house, the accused came along with two women viz. Mangala and Madhuri and asked her to allow them to remain in the house and she should stay outside. The quarrel ensured and thereafter the accused poured kerosene on her and set her ablaze causing her burn injuries. She was admitted in the Hospital. In terms of the dying declaration recorded by P.W.7, an offence under section 307 of the Indian Penal Code vide Crime No.47/07 was registered against the accused. P.W.7 P.S.I., Sanjay conducted spot panchanama (Exh.34) and seized the articles from the spot and recorded statements of several witnesses. Chhaya died on account of septicemia on 6.5.2007 and accordingly the Medical Officer informed the police. Thereafter, Section 302 of the Indian Penal Code was added. Seized Muddemal was sent to Chemical Anayalser. After completion of the investigation, charge sheet was filed against the accused in the court of the Judicial Magistrate, First Class, Rajura, who committed the case to the Court of Sessions. 3. Thereafter, Section 302 of the Indian Penal Code was added. Seized Muddemal was sent to Chemical Anayalser. After completion of the investigation, charge sheet was filed against the accused in the court of the Judicial Magistrate, First Class, Rajura, who committed the case to the Court of Sessions. 3. The accused pleaded not guilty to the charge framed under Section 302 of the Indian Penal Code and claimed to be tried. His defence was of total denial. 4. In order to prove the charge, the prosecution examined seven witnesses. The statement of the accused under section 313 of Code of Criminal Procedure was recorded. His defence was of false implication. The accused did not lead any defence evidence. The learned trial Judge, upon appreciation of the evidence, held the accused guilty of the offence punishable under section 302 of the Indian Penal Code and convicted and sentenced him as above. 5. The learned trial court placed reliance upon the testimony P.W.1 Viccy-son of the deceased and accused, who claimed to be an eye witness and also relied upon the oral dying declaration made by the deceased to P.W.-2 Shoba Durge, the sister of the deceased; dying declaration (Exh.16) made to the Executive Magistrate (P.W.-3) Keshav Bipate and two dying declarations (Exh. 27 and Exh. 36) made to P.W.-7 P.S.I. Sanjay. 6. Mr. R.M. Daga, the learned counsel appearing for the accused submitted that the evidence of P.W.1 Viccy son of the accused, does not inspire confidence and his evidence clearly suggests that he was not an eye witness to the incident. The learned counsel further submitted that the dying declaration (Exh.16) made to P.W.3 Keshav Bipate is unreliable inasmuch as there is no endorsement that the statement allegedly made by Chhaya was read over to her and found to be correct. The learned counsel further submitted that similarly the dying declarations Exh. 27 and 36 allegedly made by Chhaya to P.W.7 Sanjay Shirbhate also do not inspire confidence. In the alternative, Mr. The learned counsel further submitted that similarly the dying declarations Exh. 27 and 36 allegedly made by Chhaya to P.W.7 Sanjay Shirbhate also do not inspire confidence. In the alternative, Mr. Daga submitted that even if the prosecution case is accepted in toto, at the most the offence under Section 304(1) of the Indian Penal Code is made out and not under Section 302 of the Indian Penal Code in view of the fact that admittedly the accused came drunk and had quarrel with the deceased and he himself extinguished the fire by pouring water on the deceased and thereafter took her to the hospital. Moreover, the accused himself informed about the incident to the mother and sister of Chhaya on the very same day and the deceased expired on 6.5.2007, that is almost after ten days and as such it is evident that the accused did not intend to commit murder of Chhaya. In support of his submissions, Mr. Daga the learned counsel placed reliance on the following judgments: i) (2008) 1 Supreme Court Cases (Cri) 679 : [2007 ALL SCR 2407] (Shaikh Bakshu & others. vs. State of Maharashtra) ii) 2012 ALL MR (Cri) 2188 (Abdul Riyaz Abdul Bashir vs. State of Maharashtra). iii) 2012 ALL MR (Cri) 2453 (Paikuji s/o Shankar Ataram vs. State of Maharashtra). iv) 2012(3) Mh.L.J. (Cri.), 707 : [2012 ALL MR (Cri) 1616] (Ravindra Premdas Dhoke vs. State of Maharashtra) v) 2012(3) Mh. L.J. (Cri.) 713 : [2012 ALL MR (Cri) 1435] (Kailash Ambaji Mhaske vs. State of Maharashtra) 7. Per contra, Mr. T.A. Mirza, learned APP supported the Judgment and order impugned and submitted that the evidence of P.W.1 Viccy inspires confidence inasmuch as he is a natural witness. Moreover, his testimony has not been shaken in the cross examination on the material aspects. Mr. Mirza, further submitted that the dying declaration (Exh.16) recorded by P.W.3 Keshav Bipate has been duly proved by the prosecution and there is absolutely no infirmity in the same inasmuch as P.W.3 Keshav has clearly stated that the statement of deceased was read over to Chhaya and she admitted the same to be true. Mr. Mirza, further submitted that two dying declarations Exh. 27 and 36 recorded by P.W.7 P.S.I., Sanjay also inspire confidence inasmuch as both the dying declarations are consistent with Exh. Mr. Mirza, further submitted that two dying declarations Exh. 27 and 36 recorded by P.W.7 P.S.I., Sanjay also inspire confidence inasmuch as both the dying declarations are consistent with Exh. 16 and the evidence of P.W.7 P.S.I., Sanjay has not been shaken on the material aspects insofar as two dying declarations are concerned. Mr. Mirza, further submitted that the oral dying declaration made to P.W.2 Shoba Durge by deceased Chhaya also inspires confidence. According to the learned APP, considering the circumstances of the case, the prosecution version appears to be highly probable and the defence of suicide suggested to P.W.1 Viccy appears to be highly improbable. Insofar as the submission made by Mr. Daga that there is no endorsement on the dying declaration recorded by P.W.3 Keshav that the same was read over to the deceased is concerned, Mr. Mirza submitted that having regard to the evidence of P.W.3 and P.W.4, the dying declaration (Exh.16) inspires confidence. In support of this submission, Mr. Mirza, learned APP relied upon the Judgment of the Apex Court in the case of State of Rajasthan vs Parthu (2007 CRI. L.J. 4722) : [2007 ALL MR (Cri) 2980 (S.C.)]. Mr. Mirza, learned APP lastly submitted that no interference is warranted with the impugned Judgment and order. 8. We have carefully considered the rival submissions. Perused the records and the Judgments relied upon. 9. There is no serious dispute that deceased Chhaya died on account of burn injuries, inasmuch as it is the case of the accused himself that deceased Chhaya committed suicide by pouring kerosene on herself and setting her ablaze. P.W.6 Dr. Sangita Narnaware deposed that she had conducted post-mortem on the dead body of Chhaya Ekanath Raut on 7.5.2007 and she found epidermal and dermal infected bums as below:- Face 9% left and right upper limb 9% each chest and abdomen 8%, back 18%, left and right lower limb 16% each total 85% burns. All these burn injuries were ante mortem and cause of death was septicemia due to burns. All the injuries were sufficient in ordinary course of nature to cause death. She identified her handwriting on the post-mortem report Exh. 30 and confirmed its contents to be true and correct. She admitted that the hands of the deceased were burnt. The part of the tip of portion was burnt superficially and minor part was completely burnt. All the injuries were sufficient in ordinary course of nature to cause death. She identified her handwriting on the post-mortem report Exh. 30 and confirmed its contents to be true and correct. She admitted that the hands of the deceased were burnt. The part of the tip of portion was burnt superficially and minor part was completely burnt. In cross-examination nothing tangible has been brought on record. 10. The evidence of P.W.6 Dr. Sangita Narnaware, which is corroborated by post mortem report Exh.30, is further corroborated by inquest panchanama Exh.50. As such the prosecution has been able to establish that deceased Chhaya died on account of burn injuries. 11. The moot question which arises for consideration is, whether it was the accused who set deceased Chhaya ablaze or whether she committed suicide? 12. The prosecution has relied upon the evidence of P.W.1 Viccy, the son of deceased. P.W.1 Viccy was 13 years old when he was examined in January, 2008. He deposed that accused was not his real father. His real father expired and his mother was living with the accused and he was calling him 'Papa'. He further deposed that on the day of the incident, he was at the house along with the mother. At about 8.30 p.m. accused came with one man and two women viz. Mangala and Madhuri. The man, who had come along with the accused, was Nishikant. His mother protested. Thereafter, accused put rockel on the person of his mother and set her on fire. The accused gave two slaps to his mother before setting her ablaze. The accused also gave one or two slaps to the witness when he went to rescue his mother. Thereafter, he ran away from the house towards the police station. He went to Police Station, Gadchandur and informed about the incident. Thereafter, police came to the house. When he came back to the house, mother was lying in burnt condition and both the ladies and accused and another person were not there. In the meantime, his grand mother and mother's sister came there. His mother was shifted to Chandrapur hospital. He further deposed that Madhuri and Mangala were residing near their house. In cross-examination, he stated that there were about 20 houses in between the house of his grand mother and their house. In the meantime, his grand mother and mother's sister came there. His mother was shifted to Chandrapur hospital. He further deposed that Madhuri and Mangala were residing near their house. In cross-examination, he stated that there were about 20 houses in between the house of his grand mother and their house. He denied that some times he used to live with his grand mother or his sister. He admitted that on the day of the incident, the accused had brought two bottles of liquor and two women, accused and his mother consumed liquor. He also admitted that after consuming liquor, there was quarrel between accused and his mother. He denied that he was sleeping at the time of the incident. He admitted that his mother had woken him up. He denied that the accused had extinguished the fire by pouring water. He also admitted that the accused went to the house of grand mother and mother's sister to call them. He denied that his mother had set herself on fire under the influence of liquor. In our considered view, the evidence of P.W.1 Viccy, who was a natural witness, has not been shaken on material aspects. Moreover, his evidence also stands corroborated by the dying declarations to which we shall make reference hereinafter. It is pertinent to note that in his statement under section 313 of Code of Criminal Procedure, the accused has not even made a statement that the deceased committed suicide by pouring kerosene on her person. His case simply was that he was falsely implicated. 13. The prosecution has also relied upon the dying declaration made to Shobha Durge (P.W.2) the sister of the deceased, who claimed that on the day of the incident accused came at about 11.00 p.m. to her house and informed her and her mother that Chhaya was burnt. She further deposed that she went to the house and she saw her sister lying in a burnt condition. She asked for water, which was given by her. Thereafter, she asked her as to what had happened to which Chhaya replied that the accused had brought two women viz. Mangala and Madhuri and asked her to go out since he wanted to sleep with those women, to which she protested. The accused gave slaps to Chhaya and thereafter poured kerosene on her person and set her ablaze. Thereafter, accused extinguished the fire. Mangala and Madhuri and asked her to go out since he wanted to sleep with those women, to which she protested. The accused gave slaps to Chhaya and thereafter poured kerosene on her person and set her ablaze. Thereafter, accused extinguished the fire. She further deposed that the accused was not there in the house since he had rushed to the house of her mother. In cross examination she denied that the accused had informed her that her sister got herself burnt in a fit of anger. However, she admitted that after she came to the house of Chhaya, Chhaya asked for water which she gave and thereafter Chhaya did not talk to her till she was taken to the hospital. In view of the admission in the cross-examination by the witness that after Chhaya drank water, she did not talk to the witness, we find it extremely difficult to place reliance upon the oral dying declaration alleged to have been made by the deceased to the witness. Therefore, in our view, the prosecution has not been able to establish oral dying declaration alleged to have been made by Chhaya to P.W.2 Shobha Durge. 14. The prosecution has also relied upon the dying declaration made by Chhaya to P.W.3 Keshav Bipate-the Executive Magistrate. P.W.3 Keshav Bipate deposed that he was attached to Chandrapur Tahsil Office as Niab Tahsildar in April, 2007 when he was asked to record the dying declaration of Chhaya Eknath Raut in General Hospital, Chandrapur. After the receipt of the memo, he visited the Hospital and took Dr. Sammanwar (P.W.4) with him to ward no.6 where Chhaya was admitted. He asked the Doctor whether the patient was in a position to give statement. Doctor asked the patient and patient replied. Thereafter, Doctor signed on the form on which statement was recorded and he also signed. After the doctor certified that the patient was capable to give statement, he started recording statement of Chhaya. Chhaya told him that she is residing at Gadchandur and she was brought by her husband. She deposed that incident had occurred on 26.4.2007 at about 21.00 hours. Her husband came after consuming liquor with two women Madhuri and Mangala. She opposed their entry in the house, whereupon her husband got annoyed and poured kerosene on her and set her ablaze by lighting match-stick. Thereafter, her husband extinguished the fire by pouring water. She deposed that incident had occurred on 26.4.2007 at about 21.00 hours. Her husband came after consuming liquor with two women Madhuri and Mangala. She opposed their entry in the house, whereupon her husband got annoyed and poured kerosene on her and set her ablaze by lighting match-stick. Thereafter, her husband extinguished the fire by pouring water. Thereafter, she was admitted in the Hospital. The witness further deposed that the statement was read over to the patient and she admitted the same to be true. The patient put thumb impression. He further categorically stated that at the time of recording the statement, he and doctor were present. Thereafter, he took the signature of the doctor on the statement. He identified the statement Exh. 16 and confirmed its contents as true. In cross-examination, he denied that doctor was not present at the time of recording of the statement. He also denied that Chhaya was not in a position to speak or that her relatives were with him. He also denied that Chhaya has not made any statement to him as per Exh. 16. 15. The evidence of P.W.3 Keshav stands corroborated on material aspects by P.W.4 Dr. Shilpa Sammanwar, whose evidence is in consonance with the evidence of P.W.3 Keshav. In her cross-examination also nothing tangible has been brought on record to discredit her testimony. 16. The evidence of P.W.3 Keshav Bipate - Executive Magistrate and of P.W.4 Dr. Shilpa Sammanwar clearly proves the dying declaration (Exh. 16) in which Chhaya has implicated the accused as a person who set her ablaze after pouring kerosene on her. 17. Dying Declaration Exh. 16 has been assailed by the accused on the ground that the dying declaration which is in printed form, does not specifically state that the statement was read over to Chhaya and found to be correct. The printed form is in marathi and clause 12 states that the statement has been read over (bayan vachun dakhvile). The dying declaration also bears the signatures of the Executive Magistrate as well as of doctor on the top as well as at the end of the statement. The statement of P.W.3 Keshav that he had read over the statement to the patient and she admitted to be true, has not even been denied in the cross examination. In view of the tenor of the dying declaration Exh. The statement of P.W.3 Keshav that he had read over the statement to the patient and she admitted to be true, has not even been denied in the cross examination. In view of the tenor of the dying declaration Exh. 16 and the evidence of P.W.3, it was for the accused to cross-examine P.W.3 Keshav on this aspect but accused having chosen not to do so, we find it extremely difficult to accept the submission of Mr. Daga, that in the absence of specific mention in the dying declaration recorded by P.W.3 Keshav that the statement was read over to Chhaya and she admitted to be correct, the dying declaration cannot be relied upon. No doubt in the case of Abdul Riyaz Abdul Bashir and Paikuji Shankar Ataram (supra), the Division Bench of this Court, placing reliance upon the Judgment of the Supreme Court in the case of Sk. Bakshu, [2007 ALL SCR 2407] (supra), held that the requirement of reading over the statement and the statement by the deceased that it was correctly recorded is not an empty formality and since there was no mention in the dying declaration that it was read over to the deceased and she confirmed it to be true, the dying declaration could not be relied upon. In all three cases, there was no evidence led by the prosecution to establish that the statement was read over to deceased and she had confirmed the same to be true. Therefore, in our view, the Judgment of the Apex Court in the case of Shaikh Bakshu and both the Judgments of the Division Bench of this Court relied upon by Mr. Daga, do not advance the case of the accused. In the case of State of Rajashtan vs. Parthu, [2007 ALL MR (Cri) 2980 (S.C.)] (supra) relied upon by Mr. Mirza, there was no certificate to the effect that deceased was in a fit state of mind but the Doctor had attested the thumb impression as also her statement before the investigating officer. In the case of State of Rajashtan vs. Parthu, [2007 ALL MR (Cri) 2980 (S.C.)] (supra) relied upon by Mr. Mirza, there was no certificate to the effect that deceased was in a fit state of mind but the Doctor had attested the thumb impression as also her statement before the investigating officer. In this back ground the Apex Court held that the view of the High Court that there could not have been attestation of the statement was technically correct but what was in the mind of the doctor, who had issued the certificate in dying declaration, was that the statement of the deceased was made by her before the investigating officer in his presence and the same was correctly recorded by the later. In view of the cogent and reliable evidence led by P.W.3 Keshav, which is corroborated by P.W.4 Dr. Shilpa, we have absolutely no hesitation to place reliance upon the dying declaration Exh.16, which clearly implicates the accused as an author of the crime. 18. Insofar as the two dying declarations (Exh. 27 and 36) recorded by P.W.7 P.S.I., Sanjay Shirbhate are concerned, the evidence of P.W.7 P.S.I., Sanjay Shirbhate clearly establishes that he recorded the first statement of Chhaya on 27.4.2007 as per her say. He confirmed that the contents of the statement as true and correct. In cross-examination, he specifically denied that the statement was not read over to Chhaya. Thus, the accused himself brought on record in the cross examination that the statement was read over to Chhaya. Therefore, in our view, there is no infirmity in the dying declaration Exh.27 recorded by P.W.7 P.S.I., Sanjay Shirbhate, which was recorded after Dr. Rahul Akkawar (P.W.5) certified that the patient was fit to give statement. The evidence of Dr. Rahul (P.W.5) further corroborates the version of P.W.7 P.S.I., Sanjay Shirbhate that the statement was recorded in his presence and that the thumb impression of the patient was obtained in presence of the two witnesses. The evidence of P.W.5 Dr. Rahul Akkawar has not been shaken on the material aspects in the cross-examination. Thus, the dying declaration (Exh.27) recorded by the P.W.7 P.S.I., Sanjay, which is also on the same line as dying declaration (Exh. 16) recorded by the P.W.3 Keshav, clearly implicates the accused as the author of the crime. The evidence of P.W.5 Dr. Rahul Akkawar has not been shaken on the material aspects in the cross-examination. Thus, the dying declaration (Exh.27) recorded by the P.W.7 P.S.I., Sanjay, which is also on the same line as dying declaration (Exh. 16) recorded by the P.W.3 Keshav, clearly implicates the accused as the author of the crime. Similar is the case insofar as the dying declaration (Exh.36) recorded by P.W.7 P.S.I., Sanjay Shirbhate on 29.4.2007 is concerned. The said dying declaration also proves that it was the accused who set the deceased Chhaya ablaze after the accused came with two ladies under the influence of liquor and asked the deceased Chhaya to go out of the house. 19. Thus, the evidence led by the prosecution clearly proves that it was the accused who came drunk along with two women and one man and asked his wife Chhaya to go out of the house after having drinks and upon refusal by Chhaya, picked up quarrel with her, assaulted her and thereafter set her ablaze. 20. The next question, which arises for consideration is, what offence is made out against the accused. The prosecution evidence, to which we have made reference hereinabove, clearly suggests that the accused came drunk late in the night of 26.4.2007 along with two women viz. Madhuri and Mangala and also one man viz. Nishikant and after all of them including Chhaya had drinks, the accused asked Chhaya to go out to which she refused and thereafter there was a quarrel between the accused and the deceased Chhaya and the accused set her ablaze by pouring kerosene on her. The evidence also establishes that the accused himself extinguished the fire by pouring water on her and took her to the hospital and on the same day himself informed the mother and sister of the deceased that she was burnt. Deceased Chhaya died on 6.5.2007 i.e. after ten days. In the case of Kailash Mhaske, (2012 ALL MR (Cri) 1435] (supra) the Division Bench of this Court, to which one of us (A.P. Lavande, J) was a party; altered the conviction of the accused from Section 302 to 304 (1) of the Indian Penal Code on the ground that the accused had consumed liquor and victim had suffered 46% burn injuries and expired about a month after the incident. The prosecution had also not produced medical papers of the victim disclosing type of treatment given to her. In the case of Ravindra Dhoke, [2012 ALL MR (Cri) 1616] (supra) the Division Bench of this Court, to which one of us (A.P. Lavande, J.) was a party, altered the conviction of the appellants from Section 302 to 304(1) of the Indian Penal Code on the ground that the appellants had no motive to commit crime and the incident had occurred when the appellant no.1 was drunk and had altercation with the deceased. 21. Having regard to the facts mentioned in paragraph no. 20 hereinabove, we are of the considered opinion that the prosecution has not been able to establish that the accused intended to commit murder of deceased Chhaya. In our view, the accused intended to cause injuries to Chhaya, which were likely to cause her death and as such the accused is liable to be convicted for the offence punishable under Section 304 (1) of the Indian Penal Code. 22. In view of the above, the conviction of the accused for the offence punishable under section 302 of the Indian Penal Code and the sentence imposed on him by the trial court, are quashed and set aside and the accused is convicted for the offence punishable under Section 304 (1) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5000/- in default to undergo rigorous imprisonment for six months. The accused shall be entitled to set off the period of detention in terms of Section 428 of the Code of Criminal Procedure. The order passed by the learned trial court insofar as the disposal of the property is concerned, is maintained. 23. The appeal is partly allowed in the aforesaid terms. Appeal partly allowed.