JUDGMENT V.R. Kingaonkar, J.
1. The appellants, who are husband and mother-in-law of the deceased Sau Kavlta, impugn the judgment and order of conviction and sentence rendered by the learned II Addl. Sessions Judge, Aurangabad in Sessions Case No. 122 of 1995. Both of them have been convicted for offence punishable under Section 304-II r.w. Section 34 of the I.P. Code. Appellant No. 1-Motilal was sentenced to suffer rigorous imprisonment for five (5) years and to pay a fine of Rs. - 500/- I.O., to suffer rigorous imprisonment for three (3) months; whereas, the appellant No. 2-Gyanubai was sentenced to suffer rigorous imprisonment for three (3) years and to pay a fine of Rs. 500/-, I.D. to suffer rigorous imprisonment for three (3) months.
2. The appellants are inhabitants of a small hamlet known as Charu Tanda (Murti) in Soyegaon taluka. Somewhere in summon season of 1994 the appellant No. 1-Motilal was married to deceased Sau. Kavita. It was Gandharva marriage since the deceased Sau. Kavita was a divorcee. Her father-PW Lakhu is a poor labourer and is inhabitant of village Deulgaon Sakhare, taluka Mehkar (District Buldhana). The marriage was short lived. In the evening of 18th February 1995 deceased Sau. Kavita received burn injuries in the matrimonial house. She was brought to Civil Hospital at Buldhana for treatment of burn injuries. The Medical Officer noticed various injuries on her person and hence, gave information to Police Station at Buldhana. The police gave a request letter to Special Executive Magistrate for recording her dying declaration. Accordingly, Special Executive Magistrate-PW Chandra-shekhar visited the Civil Hospital at about 8.15 p.m. and thereafter, recorded her dying declaration. Then, deceased Sau. Kavita narrated the incident. She stated before the Special Executive Magistrate that she had returned to the matrimonial home in the same noon from her maternal house. She further narrated that in the evening her mother-in-law-appellant No. 2-Gyanubai returned home from the agricultural land and enquired as to why she had not come to the agricultural land. She further stated that after giving the explanation, appellant No. 2-Gyanubai abused her, kicked her and poured kerosene on her person. She further stated that appellant No. 1-Motilal also abused her, beat her by means of a stick and had thrown burning match stick on her person and hence, she was burnt. She further stated before the Special Executive Magistrate that both the appellants extinguished fire when she raised hue and cry.
3. Though necessary medical treatment was provided to injured Sau. Kavita yet she succumbed to the burn injuries on 23rd February, 1995. Post-mortem examination was carried out by the duty Medical Officer on the same day. The Medical Officer found that deceased Sau. Kavita had received 68% burn injuries which had ultimately resulted in her death. Thereafter, the police recorded statements of witnesses, including that of parents of deceased Sau. Kavita and carried out certain further investigation. The investigation disclosed that deceased Sau. Kavita was being ill-treated and subjected to cruelty on the ground that she and her father were unable to fulfil unlawful demands of the appellants. Both the appellants were charge-sheeted, after concluding the investigation, for offences punishable under Sections 498-A and 302 r.w. Section 34 of the I.P. Code.
4. A common charge (Exh. 9) was framed to which both the appellants pleaded not guilty before the learned Additional Sessions Judge. They denied truth into the accusation. They submitted that Sau. Kavita was injured due to accidental falling of boiling water on her person while she was engaged in cooking at the home. They submitted that she was unable to speak after the incident. They did not dispute the fact that she died as a result of the burn injuries sustained by her in the relevant evening.
5. At the trial, the prosecution examined in all nine (9) witnesses in support of its case. The learned Addl. Sessions Judge found that deceased Sau. Kavita was not subjected to cruelty. Hence both the appellants were acquitted for offence punishable under Section 498-A of the I.P. Code. The learned Addl. Sessions Judge held that the dying declaration of deceased Sau. Kavita could be relied upon and both the appellants are responsible for her death. The learned Addl. Sessions Judge further held that there was no manifest intention to cause death of Sau. Kavita and the incident had occurred at spur of moment after altercations between deceased Sau. Kavita and appellant No. 2-Gyanubai. So, it was held that the offence proved was not one punishable under Section 302 of the I.P. Code but, was under Section 304-II of the I.P. Code. In keeping with such findings, both the appellants were convicted and sentenced as stated at the outset.
6. On behalf of the appellants, learned Counsel Shri Abhay Rathod argued that the defence of the appellants is quite probable and there was no substantial reason to dislodge the same. The learned Counsel submits that the dying declaration recorded by the Special Executive Magistrate is unreliable and could not be the sole basis of the impugned judgment. The learned Counsel further pointed out that no incriminating article was recovered from the spot of the incident. He pointed out that neighbours of the appellants did not subscribe to the prosecution case. He contended that the impugned judgment is improper and the findings are based on surmises. Hence he urged to acquit the appellants. On the other hand, learned A.P.P. Shri Umakant Patil supported the impugned judgment.
7. Before I proceed to scrutinize the prosecution evidence, it would be useful to take note of the fact that the hamlet known as "Charutanda (Murti)" is at a considerable (distances?) from village Deulgaon Sakhare where parents of deceased Sau. Kavita have their residential house. Admittedly, it was Gandharva marriage of Sau. Kavita and she had gone to reside with the appellants immediately after the marriage. She was a young woman of about 31 years age. She was not accompanied by any of her matrimonial relatives when she was admitted in the Civil Hospital at Buldhana in the evening of 18th February, 1995. Deceased Sau. Kavita had resided with the appellants for about eight (8) months prior to the alleged incident. The couple had no issue and there were only three members in the family, including the appellants and deceased Sau. Kavita.
8. PW-1 Lakhu and PW-2 Subhadrabai are parents of deceased Sau. Kavita. Their versions purport to show that after two-three months of the marriage deceased Sau. Kavita was being harassed by the appellants. According to PW Lakhu, deceased Sau. Kavita had informed him that the appellants were asking her to bring ornaments and other articles from her parents. His version purports to show that she was unwilling to go to the matrimonial house but he told her that he was poor and hence she would better go to house of her husband. Both these witnesses visited the Civil Hospital at Buldhana after they came to know on the next day of incident that Sau. Kavita was admitted there for medical treatment. Both these witnesses have stated that on enquiry deceased Sau. Kavita narrated to them about the quarrel which took place in the earlier evening. She further narrated to them that appellant No. 2-Gyanubai poured kerosene on her person and she was set ablaze by means of a burning match-stick used by appellant No. 1-Motilal. She narrated to them that both the appellants left the premises and thereafter her brother-in-law, namely, Pralhad came there and extinguished the fire by placing a quilt on her person.
9. PW Lakhu states that he is earning livelihood by grazing cattle of other villagers. He admits that he is living in poverty and his financial condition was known to the appellants and hence there was no demand of dowry or any article from him at the time of the marriage. He did not lodge any complaint regarding ill-treatment meted out to deceased Sau. Kavita in the matrimonial home. His deposition reveals that only five-ten persons attended the Gandharva marriage of deceased Sau. Kavita and appellant No. 1-Motilal. He does not know whether appellant No. 1-Motilal owns agricultural land to the extent of three and half acres. The evidence of PW Lakhu and PW Subhadrabai would show, unmistakably, that due to poverty, they were unable to meet any demand for articles and no much enquiry was made about financial condition of the appellants when the marriage was settled. The very fact that only five-ten persons attended the Gandharva marriage would speak about the financial condition of PW Lakhu, who is a poor cattle grazer.
10. The parents of deceased Sau. Kavita had no substantial reason, whatsoever, to falsely implicate the appellants. They went to Civil Hospital at Buldhana on the next day of the incident when they were informed that she had received burn injuries and was admitted in that hospital. Significantly, neither appellant gave immediate information to parents of deceased Sau. Kavita about the incident. It was on next day that they were informed by her father-in-law that she had received accidental injuries. It is but natural that both of them enquired with injured Sau. Kavita as to how she had received the burn injuries. These witnesses have supported the fact that deceased Sau. Kavita gave oral dying declaration to the effect that appellant No. 2-Gyanubai doused kerosene on her person and appellant No. 1-Motilal had set her ablaze by means of a match stick, after some quarrel in the earlier evening.
11. PW-3 Dr. Choukhande carried out post-mortem examination on the dead body in the noon of 23rd February, 1995. He found following burn injuries on her person:
1. Right upper limb 10%
2. Left upper limb 8%
3. Chest and abdomen 14%
4. Back and buttock 6%
5. Right lower limb 16%
6. Left lower limb 16%
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Total 68%
12. The medical evidence purports to show that deceased Sau. Kavita had received 60% extensive burn injuries and died as a result thereof. The post-mortem report (Exh. 20) is duly proved. The defence has not challenged the medical report and the finding regarding cause of Sau. Kavita's death. It is admitted by PW Dr. Choukhande that there were no other external injuries on the person of deceased Sau. Kavita. He admitted that burn injuries are possible due to falling of boiled water on person of the injured.
13. The most important place of evidence is the written dying declaration (Exh. 25). There is testimony of PW-5 Chandrashekhar who was then working as Special Executive Magistrate at Buldhana. His version purports to show that he received requisition letter (Exh. 24) from the Civil Hospital Police Chauki for recording of the dying declaration. He visited the Civil Hospital in the same evening and contacted the Medical Officer-PW-7 Dr. Wagh. On his request, PW Dr. Wagh examined the injured Sau. Kavita and issued a certificate that she was fit to give her statement. After taking due care and caution, such as sending the relatives outside the ward, PW Chandrashekhar claims to have recorded the dying declaration as per narration of Sau. Kavita. He deposed that when he enquired about the incident, except himself and the Medical Officer, there was no other person in the proximity of Sau. Kavita. He obtained thumb impression of Sau. Kavita at the bottom of the dying declaration and the Medical Officer again examined her. The Medical Officer certified that she was conscious and able to give her statement throughout the relevant period.
14. The version of PW Chandrashekhar, Special Executive Magistrate, stands duly corroborated by the version of PW 7 Dr. Wagh. He deposed that Sau. Kavita was fully conscious and able to talk and hence he issued medical certificate prior to recording of dying declaration and after its recording. He corroborated the endorsements about such certificate at bottom of the dying declaration (Exh. 25). His version reveals that Sau. Kavita was admitted in the Civil Hospital at about 8 p.m. on 18-2-1995. The M.L.C. papers show the time of her admission in the hospital as about 8.20 p.m. but, PW Dr. Wagh clarified that it was incorrectly written by the attending sister (auxiliary midwife). There is no reason to dislodge explanation of PW Dr. Wagh insofar as the time factor is concerned. A feeble attempt was made to show that the dying declaration is doubtful because at top of it the time of recording is shown as 8.20 p.m. The otherwise reliable dying declaration cannot be branded as doubtful only because the time of admitting Sau. Kavita is shown as 8.20 p.m. in the M.L.C. register and similar time is shown at the top of the dying declaration. The error of noting time, to the extent of 5-10 minutes, is possible due to approximation of time recorded by the concerned auxiliary midwife.
15. Nothing of much importance could be elicited from cross-examination of PW Chandrashekhar. His version has remained unshattered despite the cross-examination. His version purports to how that he is an experienced Special Executive Magistrate. He has no business, whatsoever, to manipulate any false dying declaration. As stated earlier, Sau. Kavita was not in the company of any of her relatives from paternal side. So, there was absolutely no question of anybody having tutored her to give such a dying declaration. Secondly, the dying declaration was immediately recorded within a couple of hours after the incident and as such, there was hardly any possibility of her fabrication of false story so as to falsely implicate the appellants in the crime. The learned trial Court has rightly believed veracity of the statement in the dying declaration (Exh. 25). Though the burn injuries are possible due to fall or pouring of boiling water on her person yet, it is difficult to believe such defence of the appellants. Considering the nature of the burn injuries found on person of deceased Sau. Kavita, it is explicit that her right and left upper limbs, chest, abdomen and the lower portion of the body had sustained injuries. Even assuming that some boiling water may accidentally fall on person of a woman while she is engaged in cooking then also it is most unlikely that it would fall on the upper limbs and chest. For, in rural areas, and particularly in the hamlet, the cooking is done on "Chulha" (furnace) and the woman is required to be in sitting position by side thereof. As observed by the learned trial Judge, the absence of any external injury would not ipso facto rule out. possible assault by appellant No. 1-Motilal by means of a stick. Considering totality of the circumstances, I am inclined to hold that the dying declaration (Exh. 25) reflects truthful narration made by deceased Sau. Kavita regarding cause of the burn injuries sustained by her in the relevant evening.
16. The written dying declaration (Exh. 25) is further corroborated by the oral dying declaration which deceased Sau. Kavita had made to her parents. The fact that she survived for about five (5) days after the incident is indicative of her being conscious and able to speak when the written dying declaration was recorded as well when she gave oral dying declaration to her parents. The dying declaration, if is found trustworthy and acceptable, can be the sole basis of conviction. In case of Kumbhar Dhirajlal Mohanlal v. State of Gujarat , the Apex Court upheld the husband's conviction rendered on the basis of dying declaration of wife when it was found reliable. The confidence of the Court is the "summon bonum" and in the event of there being any affirmation thereof in the judicial mind, there would not arise any question of its trustworthiness.
17. The legal position, in this context is further set at rest by the Apex Court in Ravikumar alias Kutti Ravi v. State of T.N. . The Apex Court has observed that contradiction with Accident Register cannot be regarded as fatal when could be explained. The Apex Court has observed (at P. 1450, Para 4 of AIR):
Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. These well-settled principles have been recognized and reiterated by this Court in Paniben v. State of Gujarat; Uka Ram v. State of Rajasthan; Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of Karnataka; State of Maharashtra v. Sanjay; Muthu Kutty v. State.
(Citations : ; ; ; ; and , respectively.)
18. Similarly, the law in this behalf is discussed in Sham Shankar Kankaria v. State of Maharashtra Appeal (Cri) 661 of 2005 by the Apex Court confirming the view stated hereinbefore. It was observed by the Apex Court:
The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.
I have no hesitation in holding that the dying declarations of deceased Sau. Kavita are truth bearing and reliable.
19. The remaining evidence of the prosecution need not be elaborately discussed. PW-6 PSI Anil Patil corroborated the spot panchanama (Exh. 22). The evidence of PW-8 Head Constable Himmatrao would show that he received information at the police outpost of Civil Hospital, Buldhana at about 8 p.m. regarding admission of Sau. Kavita in injured condition and hence he gave request letter (Exh. 24) to the Special Executive Magistrate for recording the dying declaration. The version of PW-9 PSI Bhanudas Mante would show that he recorded statements of parents of deceased Sau. Kavita and collected post-mortem notes during course of the investigation. The investigation was not, however, carried out in happy manner. The statements of neighbours of the appellants were recorded during the investigation but, were not filed along with the charge-sheet. I need not say anything more than to observe that it was just a poor man's case and much zeal was not shown by the Investigating Officers and they failed to make serious efforts in collecting the proper material which also could have some significance besides the dying declarations which are on record. For, the Police Officer could have recorded statement of deceased Sau. Kavita. Her clothes could have been collected and sent for report of chemical analyser since it could show presence of kerosene thereon. Nothing of the sort was done by the Investigating Officer. The defective investigation will not however impair the impugned conviction.
20. The written dying declaration of deceased Sau. Kavita disclosed the fact that the incident was immediate fall out of a quarrel. She had returned to house of the appellants in the very same noon and appellant No. 2-Gyanubai had asked explanation as to why she had not come to the agricultural land for attending the agricultural work. The incident occurred as a result of such quarrel and at spur of the moment. The dying declaration (Exh. 25) categorically shows that both the appellants extinguished the fire and took injured Sau. Kavita to the Civil Hospital. The burn injuries were found on upper limbs, chest, abdomen and lower parts of the body. Having regard to these aspects, the learned Addl. Sessions Judge has rightly held that intention to cause death of Sau. Kavita could not be attributed to the appellants though they had the knowledge that such injuries might result into her death. Moreover, acquittal of the appellants for offences punishable under Sections 498-A and 302 of the I.P. Code is not challenged by the prosecution.
21. Considering all the relevant aspects of the matter and in view of the legal position discussed earlier, I am of the opinion that the impugned order of conviction and sentence is quite proper, legal and sustainable. So, the appeal must fail and will have to be dismissed. Hence the appeal is dismissed and the impugned order of conviction and sentence is confirmed. The appellants shall surrender to the bail immediately. They will be entitled to the set off as per the order of the trial Court.