Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 20 (BOM)

Bapurao Siddeshwar Salave v. State of Maharashtra

2014-01-07

A.S.GADKARI, P.V.HARDAS

body2014
Judgment P.V. Hardas, J. 1. The Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.1000/-, in default to undergo SI for one month, by the Additional Sessions Judge, City Civil & Sessions Court, Borivali Division, Dindoshi, Goregaon, Mumbai, by judgment dated 30 April 2012 in Sessions Case No.134 of 2010, by this Appeal questions the correctness of his conviction and sentence. 2. The facts, as are necessary for the decision of this appeal, may briefly be stated thus: (i) PW-8 PSI Shivaji Shirsat, who on 14.3.2010 was attached to the Kurar Police Station, received information at about 5 am from the Bhagwati Hospital regarding admission of a lady with burns. (ii) PW-8 PSI Shivaji Shirsat accordingly proceeded to the Bhagawati Hospital and ascertained from the Medical Officer regarding the condition of injured Mangal to give her statement. The Medical Officer opined that injured was in a fit condition to give her statement and accordingly recorded the statement of injured Mangal at Exhibit-37. In the said statement injured Mangal had disclosed that the appellant had poured kerosene from make-shift kerosene lamp and had set her ablaze. Thumb impression of Mangal was obtained on the statement at Exhibit-37. The partly burnt clothes of Mangal were seized under seizure memo at Exhibit-38. On the basis of the statement of Mangal at Exhibit-37, an offence came to be registered and the FIR is at Exhibit-39. The scene of the offence panchanama was drawn at Exhibit-20 and from the scene of the incident, match box, can, kerosene lamp were seized. PW-8 PSI Shivaji Shirsat has described kerosene lamp as a lamp made by inserting a wick in the lid of a bottle filled with kerosene. The accused was arrested on the same day and on 15.3.2010, the investigation was transferred to PW-9 PI Arvind Shinde. (iii) PW-9 PI Arvind Shinde on being entrusted with the investigation of the said crime recorded the statements of witnesses and had issued a memo to the Naib Tahsildar for recording dying declaration of Mangal. The seized clothes and the property were referred to the chemical analyzer under a requisition. After death of Mangal, Section 302 of IPC came to be added. Further to the completion of the investigation, a charge- sheet against the appellant was filed. The seized clothes and the property were referred to the chemical analyzer under a requisition. After death of Mangal, Section 302 of IPC came to be added. Further to the completion of the investigation, a charge- sheet against the appellant was filed. (iv) PW-5 Sadashiv Shinde a Naib Tahsildar working in Borivali Tahsil Office received a letter at Exhibit-25 for recording the dying declaration of Mangal. He had accordingly proceeded to the Bhagwati Hospital at 7 pm. A Medical Officer has opined that Mangal was in fit condition to give her statement and accordingly dying declaration of Mangal was recorded at Exhibit-24. In the dying declaration at Exhibit-24, Mangal has stated that the appellant, her husband, had poured kerosene on her from kerosene lamp and set her ablaze. (v) On committal of the case to the Court of Sessions, Trial Court vide Exhibit-3 framed charged against the appellant for an offence punishable under Section 302 of IPC. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 9 witnesses. The defence of the appellant was of denial and had stated that Mangal had committed suicide on account of quarrel with her mother PW-1 Ashabai Waghmare. The Trial Court relied upon the evidence adduced by the prosecution and convicted and sentenced the appellant as aforestated. 3. In order to effectively deal with the submissions advanced before us by Shri Arfan Sait, learned Counsel appointed for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 4. At the outset, we find that the dying declaration recorded by PW-8 PSI Shivaji Shirsat at Exhibit 37 cannot be relied upon as there is no evidence that the said dying declaration had been read over to Mangal, and Mangal had admitted the contents of the dying declaration to have been correctly recorded. A reference at this juncture may useful be made to the judgment of the Division Bench of this Court in Abdul Riyaz Abdul Bashir Vs. State of Maharashtra (2012 ALL MR (Cri) 2188). 5. A reference at this juncture may useful be made to the judgment of the Division Bench of this Court in Abdul Riyaz Abdul Bashir Vs. State of Maharashtra (2012 ALL MR (Cri) 2188). 5. In respect of the dying declaration at Exhibit-24 recorded by PW-5 Naib Tahsildar Sadashiv Shinde, it is urged by the learned counsel for the appellant that the dying declaration does not contain the time of commencement of recording of the dying declaration, nor does it contain the time when the dying declaration was concluded. It is also urged before us that the dying declaration at Exhibit-24 does not bear the endorsement of the Medical Officer on its conclusion. It is also urged before us that perusal of Exhibit-25, a letter received by the Naib Tahsildar, would show that the Naib Tahsildar was aware about the entire incident and as such could have easily fabricated the contents of the dying declaration. The learned APP has supported the findings arrived at by the Trial Court. 6. Perusal of the testimony of PW-5 Naib Tahsildar Sadashiv Shinde reveals that PW-5 has recorded the dying declaration in the words of the declarant and has read over the dying declaration to injured Mangal. We do not find any infirmity in the recording of the dying declaration, which would vitiate the dying declaration. Failure to record time of commencement of the dying declaration or failure to record the time regarding the conclusion of the dying declaration would not materially affect the value of the dying declaration in the present case. Similarly, failure to obtain the endorsement of the Medical Officer on the conclusion of the dying declaration also would not be a factor which would vitiate the dying declaration. Though, PW-5 Sadashiv Shinde has been cross-examined at length, nothing has been elicited in his cross-examination which would cast a doubt on the genuineness or truthfulness of what is stated in the dying declaration. 7. The learned counsel for the appellant has further urged before us that there is a discrepancy in the dying declaration at Exhibit-24 and Exhibit-37. Though we have held that the dying declaration at Exhibit-37 cannot be relied upon, we have examined the recitals in the dying declaration. The dying declaration recorded by PW-5 Sadashive Shinde at Exhibit 24 is a cryptic dying declaration which deals with incident only. Though we have held that the dying declaration at Exhibit-37 cannot be relied upon, we have examined the recitals in the dying declaration. The dying declaration recorded by PW-5 Sadashive Shinde at Exhibit 24 is a cryptic dying declaration which deals with incident only. The dying declaration at Exhibit-37 is an elaborate dying declaration in which injured Mangal has referred to the quarrel on the previous day as well as the incident and the subsequent events. Thus, we do not find that there is any discrepancy which would affect the reliability of the dying declaration at Exhibit-24. Merely because Mangal has not referred in Exhibit-24 that the appellant had attempted to save her, would not be a ground for discarding the otherwise reliable dying declaration at Exhibit-24. 8. The prosecution has examined PW-1 Ashabai, mother of deceased Mangal, who states that on the day of incident she had gone to the house of Mangal to settle the dispute between Mangal and the appellant. She states that she had returned home and after sometime Mangal had come to her house with burns. The clothes of Mangal were also partly burnt. PW-1 Ashabai questioned Mangal regarding cause of the burns, and Mangal had disclosed to her that the appellant had poured kerosene from the makeshift kerosene lamp and had set her ablaze. Though PW-1 Ashabai has been cross-examined and she has admitted that she had borne the expenses of the marriage of the daughter of the appellant, yet no dent is made to the evidence of PW-1 Ashabai. We, therefore, do not find any valid grounds for discarding the evidence of PW-1 Ashabai regarding oral dying declaration. 9. The prosecution has examined PW-2 Sachin Waghmare, brother of deceased Mangal and son of PW-1 Ashabai. He too deposed about the oral dying declaration. However, in cross-examination he has admitted that he was deposing as per what was informed to him by PW-1 Ashabai. Since the knowledge of PW-2 Sachin is hear-say, no reliance can be placed on the testimony of PW-2 Sachin. 10. The prosecution has also examined PW-3 Shrikant Kamble, autorickshaw driver, who had taken Mangal to the hospital, and the prosecution has also examined PW-4 Pooja Bhalerao, daughter of Mangal and the appellant. Both these witnesses have deposed about the oral dying declaration made by Mangal to them. 10. The prosecution has also examined PW-3 Shrikant Kamble, autorickshaw driver, who had taken Mangal to the hospital, and the prosecution has also examined PW-4 Pooja Bhalerao, daughter of Mangal and the appellant. Both these witnesses have deposed about the oral dying declaration made by Mangal to them. The oral dying declaration made by Mangal to PW-1 Ashabai, PW-3 Shrikant and PW-4 Pooja is consistent with the dying declaration recorded by PW-5 Sadashiv Shinde at Exhibit-24. We, therefore, find that the oral dying declaration corroborates the recitals at Exhibit-24, though in law no such corroboration is necessary. The statement of PW-1 Ashabai was recorded on the day of the incident, while the statement of PW-3 Shrikant was recorded on the next day of the incident. The statement of PW-4 Pooja was recorded after three days of the incident. However, since according to us, implicit reliance can be placed on the dying declaration at Exhibit-24, delay in recording the statement of these witnesses would not enure to the benefit of the appellant. 11. Thus, considering the evidence on record, we find that the prosecution has proved the offence against the appellant beyond reasonable doubt. The learned counsel for the appellant has urged before us that the appellant had extinguished the flame/fire and had attempted to save the life of Mangal. Prosecution has established that it was the appellant who had poured kerosene on Mangal and had set her ablaze and the subsequent attempt of the appellant of extinguishing the fire would not in any manner, even remotely, indicate that the appellant had no intention to commit the murder of Mangal. The attempts at saving the life of Mangal could be actuated as a result of several factors and would not necessarily means that the appellant had no intention to kill Mangal. The learned Counsel for the Appellant has also urged that the Medical Officers who had treated the injured in the hospital have not been examined. According to us failure to examine the Medical Officers who had examined Mangal would not materially affect the prosecution case in the light of overwhelming evidence. 12. We therefore find that the offence has been proved against the appellant beyond reasonable doubt. The Appellant has not been able to establish that deceased Mangal committed suicide. 13. According to us failure to examine the Medical Officers who had examined Mangal would not materially affect the prosecution case in the light of overwhelming evidence. 12. We therefore find that the offence has been proved against the appellant beyond reasonable doubt. The Appellant has not been able to establish that deceased Mangal committed suicide. 13. Resultantly, we do not notice any merit in the present appeal, and appeal is therefore dismissed, confirming the conviction and sentence of the appellant. Fees payable to the learned counsel appointed for the appellant is quantified at Rs.5000/-. A copy of this judgment be sent to the appellant who is undergoing his sentence in jail.