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2014 DIGILAW 1346 (BOM)

Motanbai w/o Nathu Mahire v. State of Maharashtra

2014-06-25

A.I.S.CHEEMA, S.S.SHINDE

body2014
JUDGMENT S.S. SHINDE, J. This criminal appeal is filed challenging the judgment and order dated 17/10/2000 passed by the Additional Sessions Judge, Shahada in Sessions Case No. 36 of 1999 convicting the appellant therein, for the offence punishable under Section 302 of the Indian Penal Code. The appellant-accused is sentenced to suffer Rigorous Imprisonment for life, and to pay a fine of Rs.1000/, in default to payment of fine, she has to undergo further Rigorous Imprisonment for one year. The appellant-accused is acquitted of an offence punishable under Section 498(A) read with Section 34 of the Indian Penal Code. 2. The case of the prosecution can be briefly narrated as under :- Deceased Sangitabai was the daughter of PW3 Gambhir Chitte and was given in marriage to original accused No. 2 Ishwar Mahire resident of village Varul, Taluka Shahada, District Nandurbar. After marriage, Sangitabai came to her matrimonial house at Varul and started cohabiting with her husband. Original accused Nos. 1 and 3 are her in laws. It is further case of the prosecution that, accused persons continuously for a period of four years before 22/05/1999 in furtherance of their common intention, subjected Sangitabai to cruelty on account of illegal demand of money. It was the say of the in-laws of the deceased Sangitabai that she should reside separate from them, and on account of that, she was given ill-treatment by the accused. It is further case of the prosecution that, on 22/05/1999 at about 9.00 a.m. in the morning at village Varul Kanadi, Taluka Shahada, District Nandurbar, all the accused in furtherance of their common, did commit murder of deceased Sangitabai by puring kerosene on her person and setting her on fire. Accused No.1 after pouring kerosene on the person of Sangitabai set her on fire with the stick of match box. Due to the flame of the fire, Sangitabai started running and came out of the house and fell down on the ground. The neighborers extinguished the fire and thereafter Sangitabai was shifted in the Municipal Hospital at Shahada. 3. It is further case of the prosecution that, PW1 Sk. Musa, then Nayab Tahsildar from Tahsil office, Shahada recorded dying declaration of Sangitabai in presence of Medical Officer in the Municipal Hospital at Shahada. The neighborers extinguished the fire and thereafter Sangitabai was shifted in the Municipal Hospital at Shahada. 3. It is further case of the prosecution that, PW1 Sk. Musa, then Nayab Tahsildar from Tahsil office, Shahada recorded dying declaration of Sangitabai in presence of Medical Officer in the Municipal Hospital at Shahada. After receiving information of the incident, P.S.I. Chindhu Mahajan directed Head Constable Daulat Mali to visit Municipal Hospital, Shahada and record the statement of patient Sangitabai. Accordingly, H.C. Daulat Mali came to Municipal Hospital, Shahada and recorded the statement of Sangitabai in presence of Medical Officer in the Municipal Hospital, Shahada. On the basis of said statement (Exhibit33) offence came to be registered vide Crime No. 30 of 1999 under Section 307, 498(A) read with Section 34 of the Indian Penal Code. The Investigating Officer P.S.I. Chindhu Mahajan then visited the place of incident and drew panchnama of scene of offence (Exhibit20) in presence of panchas and sealed one bottle smelling kerosene, piece of saree greenish black coloured, earth smelling kerosene, simple earth and match box. It is further case of the prosecution that, on 23/05/1999 P.S.I. Mahajan arrested accused No.1. During the course of arrest of accused No.1, saree on the person of accused No.1 Motanbai was smelling kerosene as such, said saree came to be seized under the seizure panchnama (Exhibit-21) in presence of panchas, through L.P.C. Latabai, Bakkal No. 459. The Investigating Officer then recorded the statement of the prosecution witnesses. 4. It is further case of the prosecution that, meanwhile injured Sangitabai was shifted to the Civil Hospital at Dhule. She expired at Dhule on 24/05/1999. P.S.I. Mahajan received papers from Dhule and after receiving the said papers he converted the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The dead body of deceased Sangitabai was referred for post mortem and accordingly, PW4 Dr. Ajit Patil alongwith his colleague Dr. S.V. Bhamre conducted post mortem on the dead body of the dececased on 22/05/1999 and issued post mortem report (Exhibit31). As per the post mortem report, Sangitabai sustained 70% burn injuries on her person and due to those injuries, she succumbed to death. The inquest panchnama (Exhibit19) of the dead body also came to be drawn in presence of panchas. S.V. Bhamre conducted post mortem on the dead body of the dececased on 22/05/1999 and issued post mortem report (Exhibit31). As per the post mortem report, Sangitabai sustained 70% burn injuries on her person and due to those injuries, she succumbed to death. The inquest panchnama (Exhibit19) of the dead body also came to be drawn in presence of panchas. The Investigating Officer sent seized articles to the office of Chemical Analyzer and received report (Exhibit35) from the said office. The Investigating Officer again recorded the supplementary statement of the prosecution witnesses and after due completion of investigation, submitted charge sheet in the Court of the Judicial Magistrate, First Class, at Shahada. The offence punishable under Section 302 of the Indian Penal Code being exclusively triable by the Court of Sessions, the learned J.M.F.C. Shahada committed the case to the Court of Sessions at Shahada for trial and as such, the accused have been tried by the Sessions Court at Shahada. 5. The charge (Exhibit-11) came to be framed against all the accused by the Sessions Court, Shahada and particulars of the accusation were read over and explained to the accused in vernacular to which they pleaded not guilty and claimed to be tried. It is further case of the prosecution that, the defence of the accused Nos. 2 and 3 is that of total denial. The defence of accused No.1appellant herein, is that, the deceased Sangitabai was always giving her threats on account of separate residence. On the alleged day of the incident, Sangitabai herself poured kerosene on her person. She snatched bottle from the deceased and by that time, the deceased threw baby and set herself on fire. She tried to extinguish the fire. 6. The Additional Sessions Judge, Shahada, after considering the evidence placed on record and after appreciating the rival submissions acquitted the original accused Nos. 2 and 3, however, convicted accused No.1 i.e., appellant herein, as stated hereinabove. Hence, this appeal. 7. Learned Counsel appearing for the appellant submits that, both the dying declarations of the deceased Sangitabai do not inspire confidence and therefore, both the dying declarations deserve to be disbelieved. It is submitted that, as a result of tutoring to the deceased Sangitabai, said dying declarations were given falsely implicating the appellant. Hence, this appeal. 7. Learned Counsel appearing for the appellant submits that, both the dying declarations of the deceased Sangitabai do not inspire confidence and therefore, both the dying declarations deserve to be disbelieved. It is submitted that, as a result of tutoring to the deceased Sangitabai, said dying declarations were given falsely implicating the appellant. It is submitted that, the trial Court has rightly held that, there was no any mental torture or any illegal demand and therefore, the accused were rightly acquitted for the offence punishable under Section 498(A) read with Section 34 of the Indian Penal Code. It is submitted that, copy of the original dying declaration was never produced before the Court and in absence of copy of the original dying declaration, carbon copy of the dying declaration is not admissible in the evidence as a primary evidence. It is submitted that, in the statement recorded under Section 313 of the Code of Criminal Procedure, probable defence has been raised by the appellant that, the deceased Sangitabai poured kerosene on her person and set herself on fire. It is submitted that, the alleged motive for commission of offence attributed to the appellant is that, deceased Sangitabai wanted to stay together, however, the appellant wanted that, the deceased Sangitabai should stay separately. It is submitted that, the prosecution case as stated above that the appellant wanted that, the deceased Sangitabai should stay separately is quite unusual and should not have been accepted by the trial Court. The learned Counsel further submits that, the medical evidence does indicate that, the deceased Sangitabai was not in a position to give dying declaration or give her thumb impression on the dying declaration and therefore, the dying declaration ought to have been disbelieved. Therefore, learned Counsel appearing for the appellant submits that, the appeal may be allowed. 8. On the other hand, learned Additional Public Prosecutor invited our attention to the evidence on record and in particular, the contents of the dying declarations and submits that, the prosecution has proved both the dying declarations by examining Medical Officer, who gave endorsement on the dying declaration and also the Executive Magistrate, who recorded the dying declaration. It is submitted that, dying declaration is truthful version inasmuch as, the deceased Sangitabai rightly stated that, accused Nos. It is submitted that, dying declaration is truthful version inasmuch as, the deceased Sangitabai rightly stated that, accused Nos. 2 and 3 were not involved in the commission of offence, however, accused No.1 i.e., appellant herein, poured kerosene and set her on fire. It is submitted that, presence of the accused at the spot is not in dispute inasmuch as, in statement recorded under Section 313 of the Code of Criminal Procedure, the appellant-accused herself stated that, the deceased Sangitabai herself poured kerosene on her person, at that time the appellant-accused snatched child from her and therefore, presence of the appellant-accused at the spot is established. It is submitted that, in C.A. Report, kerosene residues are found on the saree recovered from the accused-appellant and therefore, that is also proof of presence of the appellant at the spot of occurrence. Therefore, the learned A.P.P., submits that, the appeal deserves to be dismissed. 9. We have considered the submissions of the Counsel appearing for the appellant and learned A.P.P. at length, with their able assistance we have perused the original record and proceedings and also other material placed on record and in particular, evidence of prosecution witnesses and dying declarations of the deceased Sangitabai. So far as offence punishable under Section 498(A) of the Indian Penal Code is concerned, all the accused and the appellant are rightly acquitted by the trial Court since there was no evidence available on record to that effect. Two dying declarations of the deceased Sangitabai were recorded in the hospital at Shahada. While recording these dying declarations, father of the deceased Sangitabai was not there. First time, he came to the hospital at Dhule when the deceased was shifted from hospital at Shahada to the hospital at Dhule. There is no evidence in the nature of eye witness and therefore, the entire prosecution case rests upon two dying declarations of deceased Sangitabai recorded by Nayab Tahsildar and H.C. Daulat Mali respectively. 10. At this juncture, it would be appropriate to refer to the evidence of PW5 Daulat Bhatu Mali. In his deposition before the Court, he stated that, at the relevant time, he was attached to police station, Sarangkheda as Head Constable since 18/02/1996. On 22/05/1999 he was present in the police station. 10. At this juncture, it would be appropriate to refer to the evidence of PW5 Daulat Bhatu Mali. In his deposition before the Court, he stated that, at the relevant time, he was attached to police station, Sarangkheda as Head Constable since 18/02/1996. On 22/05/1999 he was present in the police station. On that day, P.S.I. Mahajan directed him to go in the Municipal Hospital, Shahada and record statement of Sangitabai Ishwar Mahide, who had been admitted there due to burn injuries. Accordingly, on the same day, he went to the Municipal Hospital, at Shahada. He met Medical Officer in the hospital and told him that, he has to record statement of patient Sangitabai. Accordingly, the Medical Officer accompanied him upto the patient. He recorded the statement of Sangitabai in presence of Medical Officer. The patient was examined by the said Medical Officer and the Medical Officer told that, Sangitabai is in a position to give her statement and thereafter, he recorded the statement of Sangitabai as per narrations made by her and obtained her thumb impression on that statement and thereafter, PW5 made his signature thereon. The said statement was recorded by the said officer at 12:30 noon. He identified thumb impression of Sangitabai on the said statement and also endorsement of the Medical Officer and also his signature and thereafter, an offence vide Crime No. 30 of 1999 under Section 307 and 498(A) of the Indian Penal Code came to be registered. 11. It is true that, if the dying declaration at Exhibit33 is perused carefully, the time of endorsement of Medical Officer appears to be 1:00 p.m. Therefore, the learned Counsel appearing for the appellant submitted that, the said dying declaration is not trustworthy. In our opinion, merely because the time is mentioned as 1:00 p.m. below the endorsement of the Medical Officer, that itself is no reason to discard the dying declaration since the contents of the said dying declaration have been proved through PW5 who recorded the said dying declaration and also there is endorsement of the Medical Officer that, the patient is fit to give statement. The said dying declaration was also read out to the deceased Sangitabai and she stated that, the said contents are as per her narration. The said dying declaration was also read out to the deceased Sangitabai and she stated that, the said contents are as per her narration. The Supreme Court in the case of Laxman vs. State of Maharashtra 1, held as under :- “The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination, the courts insist that the dying declaration should of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always 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. Normally, 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 mental opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying 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. 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 essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. 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 essentially 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 provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. It is indeed a hypertechnical 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 whereafter he had recorded the dying declaration.” 12. Therefore, in the light of judgment of the Supreme Court in the case of Laxman (supra), merely because time 1:00 p.m. is written on the said dying declaration, the entire dying declaration which is duly proved by the prosecution witnesses cannot be discarded on hyper technical objection of recording incorrect timing on the said dying declaration. PW5 in his evidence has stated that, the said dying declaration was recorded at about 12:30 p.m. The another dying declaration recorded by the Executive Magistrate appears to have been recorded on 22/05/1999 between 12:45 p.m. to 01:15 p.m. Therefore, in our opinion, the dying declaration at Exhibit33 inspires full confidence and the said dying declaration is rightly believed by the trial Court. 13. The second dying declaration is at Exhibit24. The said dying declaration was recorded by Sk. Musa Ramjan, working as Nayab Tahsildar and Executive Magistrate, Shahada. He was examined as PW1 for the prosecution. In his examination-in-chief he stated that, he was attached to Tahsil office, Shahada as Nayab Tahsildar, Sanjay Gandhi Scheme from 01/10/1998 to 12/07/1999. On 22/05/1999 one police constable from police station, Shahada came to him and told that, Tahsildar asked him to apporach him for recording dying declaration. He was examined as PW1 for the prosecution. In his examination-in-chief he stated that, he was attached to Tahsil office, Shahada as Nayab Tahsildar, Sanjay Gandhi Scheme from 01/10/1998 to 12/07/1999. On 22/05/1999 one police constable from police station, Shahada came to him and told that, Tahsildar asked him to apporach him for recording dying declaration. Thereafter, he went to Municipal Council Hospital, Shahada and met Medical Officer. He enquired the Medical Officer about Sangitabai. Thereafter, he alongwith the said Medical Officer went in the Ward wherein the said Sangitabai was admitted. Thereafter, he asked the Medical Officer whether the patient is in a condition to give statement. The Medical Officer examined the patient and also asked her whether she is willing to give statement to which she replied in the affirmative. Doctor told him that, the patient is in a condition to give statement. At that time, only PW1, Medical Officer and patient were present there. Thereafter, he enquired the patient as to what happened and recorded her statement as per narration made by her. She disclosed that, she had quarrel with her mother-in-law. She was feeding milk to her baby and by that time, her mother-in-law came to her from back side and poured kerosene on her person. Thereafter, her mother-in-law snatched baby from her and set her on fire by stick of match box. After recording the statement of patient, PW1 obtained her thumb impression and also obtained signature of Medical Officer on the said statement and thereafter put his signature thereon. The said statement was recorded in between 1245 p.m. to 115 p.m. Thereafter, copy of the said statement was sent to the police station through office. He stated that, carbon copy of the statement now shown to him is the same which was sent by the police through his office. It bears thumb impression of patient Sangitabai and signature of PW1 which he did identify before the Court. He also identified signature of the Medical Officer. The suggestion given by the Defence Counsel that, there were some other patients in the Ward alongwith patient Sangitabai and also one Kotwal with the patient has been denied by the said witness. The learned Counsel appearing for the appellant vehemently argued that, PW1 admitted in his evidence that, the Medical Officer written certificate on the statement in his chamber and therefore, said dying declaration is not trustworthy. The learned Counsel appearing for the appellant vehemently argued that, PW1 admitted in his evidence that, the Medical Officer written certificate on the statement in his chamber and therefore, said dying declaration is not trustworthy. It is also submitted that, original copy of the dying declaration was not submitted and therefore, the said dying declaration could not have been considered as a primary evidence. As already observed in view of the judgment in the case of Laxman (supra), when PW1 himself has stated that, he has recorded dying declaration after ascertaining that, Sangitabai was in a fit mental condition and conscious to give statement, the admission of PW1 that, the Medical Officer written certificate on the statement in his chamber looses its significance. Upon considering the evidence of PW1 and also the Medical Officer i.e. PW2 namely Dr. Ramkrushna Vedu Chaudhary that, he examined patient in order to verify whether she is fit to give statement and he found that, Sangitabai was fully conscious and gave response to the questions normally. He specifically stated that, he made endorsement to the effect that, the patient is fit to give statement on the same statement. He also identified carbon copy of the statement (Exhibit-24) shown to him. He also identified his signature and therefore, there is no reason to disbelieve the evidence of PW1 and 2. 14. Secondly, in view of provisions of Section 62 of the Indian Evidence Act, primary evidence means the document itself produced for the inspection of the Court. Explanation-2 makes it clear that, Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest. Apart from this, after using carbon to write out main body of the statement, the endorsement of Doctor, the Naib Tahsildar and thumb impression of the victim taken on Exhibit-24 are all in original. Therefore, in our opinion, the said dying declaration at Exhibit-24 inspires full confidence. The statement of deceased Sangitabai in her dying declaration is fully trustworthy since she did not implicate other two accused i.e. husband and father-in-law. Apart from two dying declarations at Exhibits24 and 33 which inspire full confidence, C.A. Report also indicates that, kerosene residues were found on the saree which was recovered from the appellant. The statement of deceased Sangitabai in her dying declaration is fully trustworthy since she did not implicate other two accused i.e. husband and father-in-law. Apart from two dying declarations at Exhibits24 and 33 which inspire full confidence, C.A. Report also indicates that, kerosene residues were found on the saree which was recovered from the appellant. The defence taken by the accused-appellant that, the deceased Sangitabai herself poured kerosene on her person when child was with her, appears to be false. If the child of 1½ years was with Sangitabai and taking feed, in that case it was impossible for Sangitabai to pour kerosene on her person. There was no room for tutoring the deceased Sangitabai inasmuch as, both of the dying declarations of Sangitabai were recorded in the hospital at Shahada. The father of Sangitabai came to the hospital at Dhule when Sangitabai was shifted from hospital at Shahada to the hospital at Dhule. 15. In that view of the matter, upon considering the evidence in its entirety, we are of the considered opinion that, the impugned judgment and order deserves no interference by this Court. We have re-appreciated the entire evidence so as to find out whether findings recorded by the Additional Sessions Judge, Shahada convicting the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code are inconsonance with the evidence on record or not. Upon re-appreciating the entire evidence, we are of the considered opinion that, the Additional Sessions Judge, Shahada rightly convicted the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code. Therefore, the appeal sans merit, hence dismissed. 16. It appears that, the appellant was released on bail during pendency of this appeal. We cancel the bail bonds and direct that, the appellant shall surrender and undergo remaining sentence. 17. We appreciate the sincere efforts of Advocate Mr. N.B. Suryawanshi (appointed) and we quantify Rs.9000/- (Rs. Nine thousand only) towards his fees and expenses.