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2021 DIGILAW 926 (BOM)

Lata Shivram Anklu v. State of Maharashtra

2021-06-19

PRASANNA B.VARALE, SURENDRA P.TAVADE

body2021
JUDGMENT Surendra P. Tavade, J. - The Appellant (original Accused) has preferred this appeal against the judgment and order passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.234/2014 whereby she was convicted of the charge of committing offence punishable under Section 302 of Indian Penal Code (for short "IPC"), and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000/-, in default, to suffer further simple imprisonment for a period of one month. 2. The case of prosecution, in brief, can be summarized as under: Bhumya Ramyya Yalmadu - Deceased (hereinafter referred to as the Deceased) was residing in a room at Railway Sankalp Vasahat Mankhurd, Mumbai. He was widower. He came into contact with the Appellant at Cuf Parade. The Appellant was widow. Both of them decided to reside together in the house of the Deceased. The Appellant was addicted of liquor and narcotic drug. Hence, she used to demand money from the Deceased. 3. On 12.12.2013 at about 10.00 a.m. the Deceased and Appellant were in the house of Deceased. The Appellant demanded Rs.600/- from the Deceased, but the Deceased gave only 100/- to her and told her that he would give balance amount afterwards. But the Appellant got annoyed and poured kerosene on the person of the Deceased and set him ablaze. Hence, the Deceased sustained severe burn injuries on the various parts of his body. Atiq Khan, neighbore of deceased poured water on the person of the Deceased. Somebody informed the incident to the police. 4. On receipt of the information about burning of the Deceased, police came to the house of the Deceased and shifted him to Rajewadi Hospital. In the hospital, the Medical Officer - Dr. Anand Nishad Pahadi (PW-1) recorded the history of the incident given by the deceased. Similarly, the police officer also recorded the statement of the Deceased with the consent of Medical Officer, which was treated as FIR. On the basis of statement of the Deceased, Crime No.364/2012 was registered u/s. 307 of IPC. During the course of treatment, on 13.12.2013 at about 11.00 a.m. the Deceased succumbed to burn injuries. The Investigating Officer visited the scene of offence and prepared the panchanama. He also seized articles and took samples from the spot. He recorded the statement of the witnesses. During the course of treatment, on 13.12.2013 at about 11.00 a.m. the Deceased succumbed to burn injuries. The Investigating Officer visited the scene of offence and prepared the panchanama. He also seized articles and took samples from the spot. He recorded the statement of the witnesses. The Investigating Officer prepared a inquest panchnama and the dead body was sent to the postmortem. Dr. Shivaji Vishnu Kachare (PW-5) was conducted the postmortem. He prepared the PM report wherein he opined that cause of death of the Deceased was shock due to 85% superficial to deep burns which was unnatural. Hence, the Appellant came to be arrested. 5. After the death of the Deceased, the charge was altered to Section 302 of IPC. The seized articles were sent to the Chemical Analysis. After completion of the investigation, a chargesheet came to be fled against the Appellant in the Court of Metropolitan Magistrate, 11th Court, Kurla, Mumbai. The learned Metropolitan Magistrate committed the case of the Appellant in the Court of Sessions for trial. 6. On appearance of the Appellant, a charge came to be framed under Section 302 of IPC at Exh.3. The Appellant pleaded not guilty and claimed to be tried. 7. To prove the charge against the Appellant, the prosecution has relied on the evidence of as many as seven witnesses. It was defence of the Appellant that she was not present in the house at the time of incident. The Deceased sustained burn injuries due to blast of the stove. However, she did not lead any evidence in support of her defence. 8. On going through the evidence on record and the submissions of the rival parties, the learned trial Court held the Appellant guilty u/s.302 of the IPC and sentenced her as aforesaid. Hence, the Appellant preferred this appeal. 9. Shri. Vagal, learned Counsel on behalf of the Appellant submitted that except dying declaration there is no evidence on record to prove the involvement of the Appellant in the crime. He submitted that there is no material on record to establish that the Appellant was conscious and was able to make statement, therefore, the alleged dying declaration is of no use to prove charge against the Appellant. He also submitted that even if it is presumed that the Appellant set the Deceased on fire, still charge under Section 302 cannot sustain. He also submitted that even if it is presumed that the Appellant set the Deceased on fire, still charge under Section 302 cannot sustain. He also submitted that the Appellant and the Deceased were residing together, they were not married. It is the case of prosecution that the Appellant was addicted to liquor and narcotic drug. It appears that she demanded money from the Deceased, but he did not pay. Hence, out of anger, the alleged incident was taken place. There is no intention on the part of the Appellant to commit murder of the Deceased. 10. He also submitted that at the most the case falls under Section 304 Part II of IPC. The Appellant is in custody since last more than 7 years, therefore, the leniency be shown to her. 11. On the other hand, learned APP submitted that in addition to written dying declaration, the prosecution has relied on two oral dying declarations of the Deceased. All three dying declarations are genuine and consistent. The prosecution has rightly proved the written as well as oral dying declarations of the Deceased, which established that the Appellant and none else has poured kerosene on the person of the Deceased and set him on fire. The charge under Section 302 is rightly proved by the prosecution. He also submitted that the Appellant has not shown any repentance or remorse after the incident. Therefore, it can be said that the Appellant had intention to kill the Deceased. The case does not fall under Section 304 Part II of IPC. Hence, he submitted that the order of trial Court be confirmed. 12. It is the case of prosecution that the Deceased died due to burn injuries. To prove the cause of death of the Deceased, the prosecution has heavily relied on the evidence of Dr. Shivaji Kachare (PW-5), who deposes that on 13.12.2013 he was attached to Rajewadi Hospital as a Medical Officer. On that day, dead-body of the Deceased was brought by PC No.11501 of Mankhurd police station for postmortem. On the same day between 5.15 p.m. to 6.15 p.m. he conducted postmortem examination. He found 85% superficial deep burns with reddish line demarcation in between burn injuries. He noticed skin peeled of with yellowish slough formation at burn injuries. He has given the percentage of burn injuries as under:- 1. Head, neck ,face - 9% 2. On the same day between 5.15 p.m. to 6.15 p.m. he conducted postmortem examination. He found 85% superficial deep burns with reddish line demarcation in between burn injuries. He noticed skin peeled of with yellowish slough formation at burn injuries. He has given the percentage of burn injuries as under:- 1. Head, neck ,face - 9% 2. Bilateral upper extremities - 18% 3. Bilateral lower extremities - 28% 4. Anterior of trunk - 20% 5. Posterior of trunk - 10% Total 85% superficial burns. 13. On conclusion of postmortem examination, he opined that cause of death of the Deceased was shock due to 85% superficial to deep burn which are unnatural. He produced postmortem report at Exh.26. The evidence of Medical Officer is not challenged on behalf of the Appellant. Therefore, it is established that the death of Deceased caused due to 85% burn injuries and it was unnatural. 14. It is the case of prosecution that on 12.12.2013, Bhanudas Kale (PW-4) was on duty on Mobile Van No.1 alongwith ASI Gore, Havaldar Mane, Police Constable Bangale and Patil. When his mobile van reached near Mankhurd railway station at about 10.20 a.m. they received a wireless message from control room that one person sustained burn injuries at Karbala Chawl near Rahate Nagar. Accordingly, his van reached at the sport as per the information. He saw mob of people. The injured person was brought out of the chawl. The said person had sustained injuries. He was covered with Chaddar. With the help of local people, he put the said injured in the van and proceeded to Rajewadi Hospital. On the way, he made enquiry with the injured person. He was in a position to speak. He disclosed that his girlfriend demanded money but he did not pay money to her. She got annoyed and poured kerosene and set him on fire. Thereafter, he admitted injured to the hospital. 15. The evidence of constable Bhanudas Kale (PW-4) is simply denied. He admitted that he did not lock the doors of the house of injured person. Similarly, he did not visit the spot again. It is suggested to him that the injured was not in a position to speak but he denied the said suggestion. Except the suggestion nothing has brought on record to disbelieve the evidence of Bhanudas Kale. In fact, Bhanudas Kale was a chance witness. Similarly, he did not visit the spot again. It is suggested to him that the injured was not in a position to speak but he denied the said suggestion. Except the suggestion nothing has brought on record to disbelieve the evidence of Bhanudas Kale. In fact, Bhanudas Kale was a chance witness. On the day of incidence, he was on patrolling duty. He received a message of the incident from control room. Hence, he rushed to the spot and took injured to the hospital. On the way, out of courtesy, he made enquiry with the injured about the incident which he disclosed. So it can be said that the statement made by the injured was in the form of oral dying declaration. 16. The prosecution has also relied on the evidence of Astiq Khan (PW-7) for proving the oral dying declaration of the Deceased. According to Astiq Khan, he is residing in Dargala Chawl alongwith his family. The Deceased and the Appellant were residing in front of his house. On the day of incident at about 10.00 a.m. he was taking breakfast. He heard screaming/shouts and hence he and his father came out. There was a fre in front room of the house of the deceased. He saw that the Deceased was set ablaze. He entered into the house of deceased. The Appellant was present in the room. He put water on the Deceased and covered him with Chaddar. He enquired with the Deceased as to how he caught fire. He disclosed that his wife poured kerosene on him and set him ablaze. Thereafter police van came in front of the house of the Deceased and took him to Rajewadi Hospital. On the same day, the police inquired with him and recorded his statement. 17. In the cross-examination, he admitted that his shop is situated at distance of 10 minutes by walk. He was knowing the Deceased since 2012. It is suggested to him that he did not enter in the house of the Deceased. It is also suggested that he did not see the Appellant in the room, but the said suggestions are denied by the witness. Except suggestion of denial, nothing worth has come on record to disbelieve the evidence of Atiq Khan. It is also not denied that Atiq Khan is not neighbor of the Appellant and the Deceased. It is also suggested that he did not see the Appellant in the room, but the said suggestions are denied by the witness. Except suggestion of denial, nothing worth has come on record to disbelieve the evidence of Atiq Khan. It is also not denied that Atiq Khan is not neighbor of the Appellant and the Deceased. So it can be said that the presence of the witness Atiq Khan was natural and it appears that out of curiosity, he rushed to the spot by hearing the shouts. Similarly, on enquiry, the Deceased disclosed the incident to him. Hence, it is also a oral dying declaration made by the Deceased to the witness. 18. The Deceased was brought to the Rajewadi Hospital where he was examined by Dr. Anand Nishad Pahadi (PW-1). According to him, on 12.12.2013 at about 11.00 a.m., the Deceased was brought to Rajewadi Hospital by the police. He was admitted in male burn ward. Dr. Anand Pahadi deposed that he examined the deceased and found that he had sustained 80 to 85% burn injuries. He was able to speak. He has given history of injuries as "his wife poured kerosene on him and set him at blaze". He has given name of his wife as Lata resident at Transit Camp, Mankhurd. The Medical Officer further deposed that he examined the Deceased on the first day on his admission and thereafter he was transferred to another unit. He prepared case-papers and noted down the treatment given to the Deceased, which are produced on record. The said papers are not denied by the defence. In the medical-papers, the medical officer has recorded the history of assault as burn injuries caused by wife named Lata at his house namely Transit Camp, Mankhurd around 10.00 a.m. It is further recorded that wife poured kerosene on him and set him on fire. The said history corroborates the oral dying declaration made before the constable Bhanudas Kale (PW-4) and Atiq Khan (PW-7). 19. It is the further case of prosecution that the medical ofcer informed Mankhurd police station about the admission of the Deceased in the hospital. Accordingly, the PI of Mankhurd police station deputed Uddhav Pol (PW-3) to record the statement of the Deceased. According to Uddhav Pol, he rushed to the Rajewadi Hospital and found that injured was admitted in the male burn ward. Accordingly, the PI of Mankhurd police station deputed Uddhav Pol (PW-3) to record the statement of the Deceased. According to Uddhav Pol, he rushed to the Rajewadi Hospital and found that injured was admitted in the male burn ward. He approached the treating doctor and disclosed his intention to record the statement of the injured. The medical officer then examined the patient and opined that the patient was in ft state of mind to give statement. Accordingly, he made enquiry with the patient and recorded his statement in presence of the medical officer. He further deposed that after recording the statement, he found that both palms of the Deceased had injures. Hence, he was unable to put his signature. Thus, he obtained thump impression of deceased on his statement. He further deposed that the doctor also made endorsement (Exh.17) on the statement (Exh.23). 20. The said statement is treated as FIR (Exh.23) on the basis of which crime was registered. The evidence of Uddhav Pol (PW-3) was substantiated by Dr. Anand Pahadi, who has also deposed that Mankhurd police had visited the hospital for recording statement of the Deceased. On examination of the deceased, he gave endorsement about mental and physical state of Deceased at the time of recording his statement. He identified his endorsement on the statement (Exh.17). So it can be said that Uddhav Pol (PW-3) recorded the statement the Deceased after seeking opinion of medical officer. Similarly, he recorded the statement of the Deceased in the presence of Medical Officer Dr. Anand Pahadi. In the statement, it is mentioned by the Deceased that on 12.12.2013 at about 10.00 a.m. he was sitting on the bed. The Appellant was preparing food on the stove. She demanded Rs.600/- from him, but he gave her only Rs.100/- and told her that he would pay remaining amount afterwards, but the Appellant got annoyed and poured kerosene on his person and set him on a fire with the help of lamp. Due to fire, his clothes were burnt and he sustained injuries on his chest, abdomen, hands, legs etc., he fell down from the bed and he raised shouts. Somebody poured water on his person. Thereafter, the neighbor brought him out of the house. Meanwhile, the police came to the spot and admitted him in the hospital. Due to fire, his clothes were burnt and he sustained injuries on his chest, abdomen, hands, legs etc., he fell down from the bed and he raised shouts. Somebody poured water on his person. Thereafter, the neighbor brought him out of the house. Meanwhile, the police came to the spot and admitted him in the hospital. The above statement is also in consonance with the oral dying declaration made to Bhandudas Kale (PW-4) and Atiq Khan (PW-7) and the history given by the Deceased before the medical officer. So it can be said that the oral dying declaration, the history given by the Deceased before the medical officer and the statement recorded by Uddhav Pol are consistent with each other. It is established on record that while recording the dying declaration, the police constable had taken precaution of obtaining opinion of medical officer. Similarly he also satisfied that the Deceased was conscious and able to make statement and thereafter he recorded the statement of the deceased. On the basis of evidence of Bhanduas Kale (PW-4), Atiq Khan (PW-7), Uddhav Pol (PW-3), Dr. Anand Pahadi (PW-1), prosecution has proved the oral as well as written dying declaration of the Deceased. 21. In view of the above discussion, it is established that the entire prosecution case rests on the dying declarations of the Deceased. On this point, the decision of Apex Court in the case of Laxman vs. State of Maharashtra, (2002) 6 SCC 710 is useful, which runs 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 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 always to be on guard to see that the statement of the deceased was not as a result of either tutoring of promoting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. 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 of promoting or a product of imagination. The court also must further decide that the deceased was in a ft 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 ft mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, not can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, 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. 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 ft state of mind. Where it is proved by the testimony of the Magistrate that the declarant was ft 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 certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 22. In the present case, the witness Uddhav Pol (PW-3) had made himself satisfied that the Deceased was in ft state of mind and then recorded his statement. It is also proved that the Deceased was ft to make statement. Accordingly, the Medical Officer has given his opinion. Therefore, the prosecution has proved written as well as oral dying declaration in the present case. Similarly the dying declaration is voluntary and truthful. 23. It is also proved that the Deceased was ft to make statement. Accordingly, the Medical Officer has given his opinion. Therefore, the prosecution has proved written as well as oral dying declaration in the present case. Similarly the dying declaration is voluntary and truthful. 23. The Investigating Officer Chandrashekhar Nalawade (PW-6) had visited the spot alongwith panch-witness Prabhakar Borkar (PW-2). He prepared the scene of offence panchnama, which is proved through panch-witness Prakash Borkar (PW-2). In his presence, green colour plastic can, bottle cum kerosene lamp were seized. Thereafter burnt clothes of the deceased have been seized under panchnama. The witness has identified the seized articles. The scene of offence panchnama and seizure of clothes of the Deceased are not denied by the Appellant. So it can be said that the Investigating Officer has carried out investigation properly. The prosecution has proved oral as well as dying declaration. The said dying declarations are consistent with each other. The prosecution has proved that the Appellant poured kerosene on the person of Deceased and set him on fire which resulted into his death. 24. On behalf of the Appellant, the learned Counsel submitted that the Appellant and the Deceased were residing together as husband and wife. Both of them were in their advance age. The Appellant was addicted to liquor and narcotic drugs. The said fact was within the knowledge of the deceased. Therefore, he used to give money to the Appellant to fulfill her habits. It is contended that on the day of incident, the Appellant demanded sum of Rs.600/-, but the deceased gave only Rs.100/-, therefore, she got annoyed and the incident had occurred. There was no intention of the Appellant to kill the deceased, but out of anger and annoyance the incident had taken place. Therefore, the offence is squarely falls within the four corners of Section 304 Part II of the IPC. 25. On the other hand, learned APP submitted that the Appellant had intention to kill, as the Appellant said to the Deceased that he should die. Except the said words, there is nothing on record to establish that the Appellant had intention to kill the Deceased. It appears that the incident had occurred on the spur of moment as the deceased did not fulfill the demand of the Appellant. Except the said words, there is nothing on record to establish that the Appellant had intention to kill the Deceased. It appears that the incident had occurred on the spur of moment as the deceased did not fulfill the demand of the Appellant. So we find substance in the submissions of the learned Counsel on behalf of the Appellant that the incident occurred out of anger, annoyance. No doubt, the Appellant had knowledge that due to the incident, the deceased may die, but she set him on fire. So it can be said that the provisions of Section 304 Part II are applicable to the facts of the present case. The punishment provided under Section 304 Part II reads as under :- "...or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is doe with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 26. The Appellant is aged about 65 years. The incident had taken place on 12.12.2013. Since then the Appellant is in custody and undergoing life imprisonment. Looking to the age of the Appellant and the nature of offence proved against her, the sentence undergone by the Appellant is sufficient sentence to be imposed to her. Hence, we pass the following order: ORDER I. Criminal Appeal is partly allowed. II. The conviction and sentence passed against the Appellant under Section 302 is hereby set aside. III. The Appellant is held guilty for the offence punishable under Section 304 Part II of IPC. IV. She is sentenced to the period undergone by her and pay a fine of Rs.1000/-, in default, to suffer further simple imprisonment for a period of two weeks.