JUDGMENT R.C. Chavan, J.
1. Being aggrieved by her conviction for offence punishable under Section 302 of the Penal Code and resultant sentence of imprisonment for life and fine of Rs 500/-imposed upon her by the learned Additional Sessions Judge, Pune, accused in Sessions Case No. 518 of 1991 before him, has preferred this appeal.
2. Accused is wife of brother-in-law of victim Lata, who died on account of burn injuries sustained by her on 16/7/1990. Both the victim and accused resided in the same house. It is the prosecution case that on 16/7/1990, at about 12.00 noon there was a quarrel between the two women, leading to appellant pouring kerosene on the person of the victim. Momentary sense of guilt led the appellant to pour kerosene on herself also. The quarrel continued and eventually appellant set the victim on fire by lighting match stick and throwing it at Lata. Lata was admitted to Sasoon Hospital. Police were informed. Police requested the Special Judicial Magistrate -Shri Adhav to record dying declaration. Accordingly, Shri Adhav ascertained fitness of the victim to make statement and then recorded her dying declaration wherein Lata mentioned that she had been set on fire by the appellant.
3. An offence was registered. Police performed inquest, after death of Lata on 25/7/1990, caused post-mortem examination to be conducted, seized incriminating articles, recorded statement of witnesses and, on completion of investigation, charge-sheeted the appellant.
4. The learned Judicial Magistrate, First Class, Vadgaon-Mawal committed the case to the Court of Sessions at Pune. Charge of offence under Section 302 of the Penal Code was framed against the appellant by the Additional sessions Judge to whom the case was assigned. Accused pleaded not guilty and hence was put on trial.
5. In course of trial, prosecution examined in all witnesses. Defence of the accused is of false implication. Upon consideration of the prosecution evidence and the defence raised, in light of arguments advanced, learned Additional Sessions Judge came to hold the appellant guilty of murder of Lata and hence convicted the appellant for offence punishable under Section 302 of the Penal Code and sentenced her to imprisonment for life and fine of Rs 500/-as aforementioned. Aggrieved thereby, appellant has filed this appeal.
6. We have heard the learned counsel for the appellant as also the learned Additional Public Prosecutor for the State. There is no dispute that the deceased Lata sustained burn injuries on 16/7/1990 and succumbed to those injuries on 25/7/1990. The question is how she sustained these burn injuries. The main contention of the appellant's learned counsel is that, in this case, there are at least two exculpatory disclosures made by the victim to doctors which ought to have been considered by the trial court.
7. P.W. 3 -Dr Bhaskar Jadhav stated that on 16/7/1990, the patient was admitted to Sasoon Hospital at 3.55 p.m. He claimed to have taken her history. It is worthy of note that in examination-in-chief, he stopped short of describing the history stated by the patient. In cross-examination, he stated that the patient gave history of cause of burns due to stove blast.
8. P.W. 5 -Dr. Sudhir Deshpande stated that he was working as Casualty Medical Officer on incidental day. He stated that he was informed at about 3.55 p.m. that the patient was admitted to Burn Ward. According to him, the mother-in-law of the patient told him that Lata had sustained burns while cooking in their house. He made entry in the MLC Register.
9. Learned Counsel for the appellant submitted that these two entries in respect of burn injuries sustained by Lata are first disclosures made by Lata to authorities. She further submitted that even before Lata was brought to Sasoon Hospital, she had been taken to hospital of one Dr. Parmar at Lonawala As may be seen from Exhibit-32, case paper from Parmar Hospital, history of accidental burns by blast of stove is recorded.
10. The evidence of P.W. 1 -Special Judicial Magistrate -Shri Adhav in respect of dying declaration is unimpeached. He stated that when he went to Sasoon Hospital, Dr. Wable was present. He told Dr. Wable about the purpose of his visit and asked the doctor whether he could record statement of the victim. He then claimed to have recorded the dying declaration in question answer form which is at Exhibit-11 in which the victim categorically states that the accused had poured kerosene on her person and set her on fire. This statement was recorded on 16/7/1990 at about 6.00 p.m. Reference to Dr. Wable by P.W. 1 -Special Judicial Magistrate Shri Adhav was not correct. Dr. Wable, examined as P.W.4 had, in fact, conducted autopsy. It was P.W. 3 -Dr. Bhaskar Jadhav who had been contacted by P.W. 1 Special Judicial Magistrate Shri Adhav for recording dying declaration. However, since a magistrate need not know all doctors by name, this discrepancy is inconsequential.
11. P.W. 3 -Dr. Jadhav states that on 16/7/1990, one Magistrate had come for recording statement and, in his presence, the statement of the patient was recorded. He claims to have been present near the patient all the time. The patient was conscious and well oriented and, accordingly, he made an endorsement on the statement at Exhibit-11. Thus, as far as recording of this dying declaration at Exhibit-11 is concerned, there can be absolutely no doubt that it was recorded correctly when the patient was fit to make statement.
12. There is another statement recorded by P.W. 2 ASI Bhokare at Exhibit-14. It is in a narrative form, wherein too, the victim had given same story. Even in respect of this statement recorded on 19/7/1990, P.W.3 Dr. Jadhav admitted his endorsement that the patient was fit to make statement.
13. The main-stay of contention of the learned Counsel for the appellant is, when there are exculpatory statement made to two independent authorities, such statements would outweigh or atleast create a doubt about the correctness of inculpatory dying declaration, which, in these circumstances, would not form foundation of guilt of the accused. She submitted that in Prakash v. State of Maharashtra (Criminal Appeal No. 170 of 1989 decided by the Division Bench of this Court on 19/1/2005), the Court had considered the effect of inconsistent dying declarations and, in that context, had even considered the dying declaration in the form of history recorded by Medical Officer. In para 10 of the judgment, in that case, the Court had relied on such history recorded by the doctor in that case, observing that the doctor was totally disinterested person having no concern with the deceased or with the accused. The Division Bench held that the evidence of doctor could not be disbelieved. In this view of the matter, the Bench held that benefit of doubt should go to the accused and the Bench proceeded to acquit the accused.
14. We have carefully considered the judgment rendered by the Division Bench of this Court in Prakash v. State of Maharashtra (supra) and also the decisions of the Supreme Court referred to by the said Bench. There can be no doubt that a dying declaration need not necessarily be a written dying declaration and there could be verbal or oral dying declaration, like any oral statement made to doctor at the time of admission. But, in that case, in order to satisfy the test of it being a statement relating to cause of death or circumstances leading to death, it has to be conveyed to the court at trial in precisely the same words used by the maker of the statement. Mere reference to history given by the patient would not be adequate. It was necessary for P.W. 3 -Dr. Jadhav to convey to the Court the exact words in which patient had given the history. It may be seen that Dr. Jadhav avoided stating in examination-in-chief the history which he had learnt from the patient. He stated in cross-examination that the history which the patient had given was due to stove blast. This is too cryptic and does not qualify to be a statement. It is just a recollection of what doctor believes or remembers to have heard.
15. Apart from this, these aspects have been considered by the learned Additional Sessions Judge in his Judgment and has given cogent reasons why this account by P.W. 3 -Dr. Jadhav would not outweigh the dying declaration recorded by P.W.1 -Special Judicial Magistrate Shri Adhav. We fully endorse those reasons. In addition, suffice it to say that P.W. 5 -Dr. Deshpande stated in cross-examination that the history of burns -while cooking -was given by the victim's mother-in-law and not by the victim herself. The possibility of P.W. 3 -Dr. Jadhav having got confused about who gave history, cannot be ruled out. P.W. 3 -Dr. Jadhav had produced original MLC papers which have been marked as Exhibit-17. In this compilation at page 73, there is record which gives history of patient as homicidal burns. This casts a doubt as to whether P.W. 3 -Dr. Jadhav correctly heard the victim conveying cause of burns as blast of stove or whether he heard that the burns are homicidal in nature.
16. The learned counsel for the appellant also relied on a sheet of paper marked at Exhibit-32 on the letter head of Parmar Hospital. This document is dated 22/7/1990 and mentions history of accidental burns by blast of a stove. First, the document is not a contemporaneous record of disclosure made at the time of admission of the patient, since on 16/7/1990 itself, the victim was shifted from Parmar Hospital to Sasoon Hospital. Secondly, as in the case of history recorded by P.W. 3 -Dr. Jadhav, even in respect of document at Exhibit-32, it has to be observed that it is not a record of verbal account given by the victim. It does not show that the history was given by the victim herself and, therefore, cannot amount to a statement of the victim relating to cause of her death.
17. We have carefully considered the observations of the Bench, deciding the case of Praksh v. State of Maharashtra. It may be seen that, in that case, the Bench had concluded that the evidence of Dr. (Mrs) Ranade could not be disbelieved and ought to be accepted as true. Thus, the observations of the Bench pertain to appreciation of evidence of Dr. Ranade in that case. Obviously, they do not lay down any legal principle of universal application which settles the question raised before us in this case. We would reiterate that, in the instant case, except dying declaration recorded by P.W. 1 -Special Judicial Magistrate Shri Adhav and the statement recorded by P.W. 2 -ASI Bhokare, there is no previous statement of the victim which would meet the requirement of Section 32 of the Evidence Act. The so-called history heard by P.W. 3 -Dr. Jadhav is neither recorded nor reproduced by him in exact words of the victim. Therefore, we have no opportunity of testing its correctness qua the statement recorded by P.W. 1 Special Judicial Magistrate Shri Adhav.
18. The learned Counsel for the appellant next submitted that neighbours and relations have not been examined. It has not been shown that any neighbours or relations could have thrown different light on the incident. The incident occurred inside the house. Therefore, ordinarily, neighbours or relations would not have any opportunity of seeing the incident.
19. The story of accidental burn injuries by blast of a stove receives a body blow from panchanama of spot at Exhibit-22. It seems that this panchanama was drawn up about three days after the incident. It does not show any stove at the spot, though burnt clothes, plastic Can and a match box were very much found at the spot. In view of this, we hold that the learned Trial Judge rightly concluded that the appellant set the victim on fire.
20. However, the circumstances established do not indicate that the appellant indulged in this act either with the intention to cause death of victim or with the knowledge that the resultant injuries would lead to victim's death. It seems that two women in the household, in course of a quarrel, got worked up and one of them rashly poured kerosene and set the other on fire. On the facts of this case, we feel that the circumstances are indicative of an impulsive act without premeditation in course of a quarrel and would attract provisions of Section 304 Part-II of the Penal Code rather than Section 302.
21. In this view of the matter, we allow the appeal partly, set aside the conviction of the appellant for offence punishable under Section 302 of the Penal Code and, instead, convict her of the offence punishable under Section 304 Part-II of the Penal Code. Considering the circumstances in which the offence occurred and also the fact that the appellant is a house wife having no adverse antecedents, we felt that sentence of rigorous imprisonment for seven years would meet the ends of justice. Consequently, we direct that the appellant shall suffer rigorous imprisonment for seven years. Appellant shall surrender to her bail within one month before the Sessions Judge, Pune who shall then take steps to have the appellant committed to prison to serve out her sentence. Appellant shall also be entitled to set off as admissible.